ALJDEC decisions subject to certification as final

2010A-308472050-ROC · Registrar of Contractors · 2011-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2011 APPEARANCES: Zona Steffen appeared personally. Sedona Home Center, Inc. was represented by its authorized representative, Mark A. Taesali. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Sedona Home Center, Inc. (“Respondent”) is the holder of License No. 184767, a Class K-8 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On April 1, 2010, Zona Steffen (“Complainant”) filed a written Complaint with the Registrar alleging 14 Complaint items pertaining to Respondent’s workmanship on a project at Complainant’s residence in Sedona, Arizona. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Schweiger, performed a jobsite inspection on April 20, 2010, to view the Complaint items 4. As a result of his jobsite inspection, Inspector Schweiger issued a Corrective Work Order dated April 26, 2010, that gave Respondent 36 calendar days to comply with the following directive: From the facts now be for [sic] us the refinishing of the cork flooring does not appear to have achieved the agreed to conditions of the agreement due to un [sic] evenness of the floor and color and sheen differences with the existing flooring. The Contractor shall correct items 10 thru 14 by appropriate means. Items 1 thru 9 are descriptive of conditions that not [sic] longer exist. No action is required.

5. Complaint items 10 through 14 are as follows: 10. [Repair job] – Raw cork under the finish is all that’s left of the floor 11. [Repair job] – Stain applied is too dark and wrong color to match other flooring 12. [Repair job] – Divots and dips in cork floor, below the level surface after factory finish removed 13. [Repair job] – Newly applied sealer does not restore shine to floor. 14. [Repair job] – Floor is of inferior quality, dark and blotchy, without sheen and proper shine.

6. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. The cork-flooring product had originally been purchased at Home Depot by Complainant. 9. The cork-flooring product was installed by Shane Byrum, an unlicensed contractor. Mr. Byrum applied two coats of Bona Traffic® sealant to the completed cork floor. 10. Complainant paid the sum of $3,182.50 to Home Depot for the flooring product and sealant product. 11. Complainant hired Respondent to apply one coat of Bona Traffic® sealant on a portion of the Complainant’s cork floor. Respondent agreed to use the product supplied by Complainant. That sealant’s package had been opened by Complainant prior to Respondent’s use of the product. 12. Respondent’s workers had only used the product once before Complainant’s project. 13. During the application of the product, the floor where the product had been applied flashed, meaning that it dried too quickly. 14. Respondent failed to comply with the Registrar’s Corrective Work Order. 15. Respondent contended that the product supplied by Complainant and used by Respondent was contaminated, resulting in the deficiencies. Therefore, Respondent believes that it bears no responsibility in this matter. That position is not supported by the evidence. Respondent presented no evidence that the product became contaminated as a result of Complainant opening it shortly before its use or in the storage of the product since it was purchased by Complainant. Respondent could have insisted that new product be purchased when it entered into the contract with Complainant, but instead it agreed to use the opened product. 16. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 184767 is current. Those records further reveal one open complaint, being this case, and one Resolved/Settled/Withdrawn complaint. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant bears the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s written directive to correct its deficient workmanship. RECOMMENDED ORDER Respondent’s License No. 184767 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent submits proof to the Registrar, and the Registrar accepts such proof, that Respondent has fully complied with the Corrective Work Order issued in this matter. If Respondent submits proof to the Registrar that Respondent has fully complied with the Corrective Work Order on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar accepts such proof of compliance, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 184767 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves proof of Respondent’s full compliance with the Corrective Work Order, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2010-[number redacted] shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, April 25, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826