ALJDEC decisions subject to certification as final

2010A-308472273-ROC · Registrar of Contractors · 2011-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2011 APPEARANCES: Joseph Bowen appeared personally. Borgerson’s Arizona Floors, L.L.C. was represented by its authorized representative, Robert Borgerson. 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. Borgerson’s Arizona Floors, L.L.C. (“Respondent”) is the holder of License No. 211002, a Class K-8 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On March 17, 2010, Joseph Bowen (“Complainant”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent in the installation of tile flooring in Complainant’s residence. The Registrar designated Complainant’s Complaint as Case No. 2010-[number redacted]. 3. In response to the filed Complaint, the Registrar’s assigned inspector performed a jobsite inspection to view Respondent’s workmanship. As a result of that inspection, the inspector issued a Corrective Work Order, the terms of which are incorporated herein by reference, directing Respondent to timely perform remedial work to its tile floor installation pursuant to manufacturer’s specifications and workmanship standards. 4. 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) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, (15), and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Respondent is determined to have failed to comply with the Registrar’s Corrective Work Order. 7. Respondent accepted the surface of Complainant’s floor by installing its tile and grout on the floor. Respondent is responsible for any and all repairs necessary for its tile and grout installations to meet manufacturer’s specifications and minimum workmanship standards. 8. Complainant failed to present any evidence that Respondent failed to properly do business in the name appearing on its license, that Respondent failed to properly list its contracting license as required by statute, or that Respondent failed to present Complainant with a contract with the required statutory provisions. 9. A review of the Registrar’s official electronic licensing records reveals that the Complaint in this matter is the only complaint against Respondent’s license. 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 has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, and (15). Complainant failed to present any credible evidence to establish factual bases for those charged violations. RECOMMENDED ORDER Respondent’s License No. 211002 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until the Registrar receives written proof, and accepts such proof, that Respondent has fully complied with the terms of the Corrective Work Order. In addition to the foregoing license suspension, if any, Respondent’s License No. 211002 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 the Registrar approves written proof of Respondent’s full compliance with the Corrective Work Order, whichever is later. In addition to the above-provided penalties, if any, 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 License No. 211002, 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, March 3, 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