ALJDEC decisions subject to certification as final

2010A-550050-ROC · Registrar of Contractors · 2010-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2010 APPEARANCES: Elena Starbuck appeared via videoconferencing and Christopher Starbuck appeared telephonically. Creative Flooring Designs, Inc. was represented by its authorized representative, David Harvey, who appeared via videoconferencing. 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. Creative Flooring Designs, Inc. (“Respondent”) is the holder of License No. 115661, a Class C-8 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On October 7, 2009, Christopher and Elena Starbuck (“Complainants”) filed a written Complaint with the Registrar alleging deficiencies in the marble tile flooring installed by Respondent on a project at Complainant’s residence in Sedona, Arizona. 3. The Registrar initially designated the Complaint as Case No. F10-0055, but later re-designated it as Case No. 2010-550050. 4. The Registrar issued a Citation and Complaint in Case No. 2010-550050 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32- 1124(B), and (23). 5. The Registrar forwarded Case No. 2010-550050 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On October 19, 2009, the Registrar’s assigned inspector, Mark Schweiger, performed a jobsite inspection at Complainants’ residence to view Respondent’s alleged deficient workmanship. 7. On October 27, 2009, Inspector Schweiger issued a Corrective Work Order directing Respondent to timely correct its deficient workmanship by appropriate means. The terms of the Corrective Work Order are incorporated herein by reference. 8. There are no installation issues in this matter. Respondent’s installation of the marble tile floor meets workmanship standards. There is an issue with some of the marble tiles needing repair and/or replacement. 9. Respondent failed to timely comply with the Registrar’s Corrective Work Order. Respondent waited until December 2009, to have its workmanship inspected by its expert, Ralph Williamson. Mr. Williamson, who did not testify at the hearing, determined in a written report that areas of Complainants’ marble tile floor should be repaired. After reviewing Mr. Williamson’s report, Inspector Schweiger concurred with the findings. 10. A dispute exists between Complainants and Respondent as to how deficiencies in the marble floor should be addressed. Complainants want Respondent to remove and replace the entire marble floor installation. Respondent’s president and qualifying party, David Harvey, testified at hearing that Complainants’ kitchen and hallway have marble tiles that need to be removed and replaced. The remainder of the areas of deficient, substandard tile can be repaired. 11. Complainants’ general contractor, Chris Dolan, testified at hearing that the deficient marble tiles can be repaired. Mr. Dolan described the marble tile floor as beautiful. 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), Complainants have 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) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 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), as charged in the Citation and Complaint issued by the Registrar. Complainants did not address this allegation at hearing. RECOMMENDED ORDER Respondent’s License No.115661 shall be suspended on the effective date of the Order entered in Case No. 2010-550050 until Respondent provides the Registrar with written proof that Respondent has fully complied with the Corrective Work Order issued in this matter, and the Registrar approves such proof of compliance. Complainants shall not dictate the methods used by Respondent to become compliant with the Registrar’s written directive. In addition to the foregoing license suspension, if any, Respondent’s Class C-8 contracting license shall be placed on probation for a period of days commencing on the effective date of the Order entered in Case No. 2010-550050 or the date on which the Registrar approves proof of Respondent’s compliance with the Corrective Work Order issued in this matter, whichever is later. In addition to the foregoing 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. 2010-550050 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), 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, August 18, 2010.

/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