ALJDEC decisions subject to certification as final

2011A-1300-ROC · Registrar of Contractors · 2011-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2011 APPEARANCES: Luz Marina Selles appeared personally. Perchez Tile and Stone Contracting, L.L.C. was represented by its authorized representative, Oscar Perchez. 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. Perchez Tile and Stone Contracting, L.L.C. (“Respondent”) is the holder of License No. 260661, a Class K-48 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On March 8, 2011, Luz Marina Selles (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on a bathroom project at Complainant’s residence located at 135 East Betsy Lane, Gilbert, Arizona. The Registrar designated the Complaint as Case No. 2011-1300. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection on March 18, 2011, to view Respondent’s workmanship. As a result of that inspection, Inspector Cason issued a Corrective Work Order dated March 24, 2011, that required Respondent to timely perform the following: Complaint – The shower pan is leaking in the upstairs bathroom. This Inspector conducted a water test; confirmed water leak; water is leaking around the shower pan’s drain. It also appears that the leak in the upstairs hall bathroom shower has caused correlated damages to the downstairs master bedroom’s walk-in closet’s ceiling and the upstairs plywood sub-flooring. The Respondent had removed the completed shower pan’s floor tiles prior to this inspection and had attempted to correct the water leak; however, at the time of this inspection the installation of the shower pan’s floor tiles is incomplete. The Respondent is to correct/complete the water leak, shower pan and all correlated damages by appropriate means.

(Emphasis in the original).

4. The Registrar issued a Citation and Complaint in Case No. 2011-1300 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 32-1158, and (23). 5. The Registrar forwarded Case No. 2011-1300 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Respondent performed work to the subject shower at Complainant’s residence in May of 2010. Complainant paid Respondent the sum of $3,100.00 for Respondent’s work. 7. In December of 2010, Complainant noticed water damage to sheetrock on the first floor of her residence under the area of the upstairs bathroom. 8. Respondent failed to remedy the water leaking from the upstairs shower. 9. As a result of Respondent’s failure to remedy the shower, Complainant hired PlumberFromDownUnder in April of 2011 to “install new shower drain and replace wood floor around drain as required only.” Complainant paid that contractor the sum of $229.94 for its scope of work. 10. In April of 2011, Complainant also hired Jose Pajion Tile, Inc. to repair the tile in the shower. Complainant paid that contractor the sum of $650.00 for those repairs. 11. On August 19, 2011, Inspector Cason performed a prehearing jobsite inspection. Respondent was not present at that inspection. At the hearing, Inspector Cason testified that there were no leaks in the shower since repaired by the other contractors. Inspector Cason also testified that the drywall to the master bedroom closet had not been repaired. 12. Complainant did not address the allegation that Respondent failed to comply with the statutory required minimum elements of a contract when Respondent contracted with Complainant. 13. Respondent failed to properly list its contracting license number as required by statute. For example, Respondent’s Answer to the Citation and Complaint does not contain Respondent’s contracting license number preceded by the acronym “ROC.” 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 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, as charged in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship was described in the Registrar’s Corrective Work Order. 4. 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. Respondent’s failure to properly list its contracting license number as required by the statute supports this conclusion. 5. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. Complainant did not address this issue at the hearing. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent did not comply with the Registrar’s Corrective Work Order. 7. Complainant established an entitlement to restitution from Respondent in the total amount of $879.94, pursuant to A.R.S. § 32-1156.01. RECOMMENDED ORDER Respondent’s License No. 260661 shall be suspended on the effective date of the Order entered in Case No. 2011-1300 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Registrar’s Corrective Work Order and that Respondent has paid Complainant restitution in the total amount of $879.94. If the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Registrar’s Corrective Work Order and that Respondent has paid Complainant restitution in the total amount of $879.94 on or before the effective date of the Order entered in Case No. 2011-1300, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 260661 shall be placed on probation for a period of 180 days commencing on the effective date of the Order entered in Case No. 2011-1300 or the date on which the Registrar approves proof of Respondent’s full compliance with the terms of the Order entered in this matter, 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. 2011-1300 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, September 7, 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