ALJDEC decisions subject to certification as final

2011A-3124-ROC · Registrar of Contractors · 2012-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: August 10, 2012 APPEARANCES: Sharon and Gregory Marks appeared personally. Justin Pahtrick Allen, doing business as Desert Coatings, was represented by his attorney, Richard L. Klauer, Esq., of Richard L. Klauer, P.C. 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: 1. Justin Pahtrick Allen, doing business as Desert Coatings (“Respondent”), is the holder of License No. K-5.183016-D issued by the Registrar of Contractors (“Registrar”). 2. Sharon and Gregory Marks (“Complainants”) are the owners of a residence located at 2488 W. Warren Drive, Anthem, Arizona. 3. Complainants and Respondent entered into a contract dated May 8, 2011, for the application of an acid stain to the floor at Complainants’ residence. The parties’ contract provided for a contract price of $6,312.21. Complainants paid Respondent a down payment in the amount of $3,158.11. 4. On May 31, 2011, Sharon Marks filed a written Complaint with the Registrar alleging ten specific Complaint items against Respondent. Complainants requested the return of the deposit that they had paid to Respondent and damages. The Registrar designated the Complaint as Case No. 2011-3124. 5. On June 14, 2011, the Registrar’s assigned inspector, Jim Dimond, performed a jobsite inspection at Complainants’ residence to address the Complaint items. As a result of the jobsite inspection, Inspector Dimond issued a Corrective Work Order dated June 15, 2011, that made the following findings: Item 1 – Coating on the floor is easily coming up and is easily scratched. Contractor is to correct the condition in an appropriate manner.

Item 2 – New paint job is completely ruined by their product, the walls and doors. There is stain on every baseboard involved on the project. Furthermore, there is an unknown substance all over the walls of the new paint. The walls are custom colors. Contractor is to correct the base in an appropriate manner.

Due to painting being beyond the scope of this contractor’s license, the contractor is to correct the condition using an appropriately licensed contractor.

Item 3 – Toilets not reinstalled correctly and [were] leaking, crooked and running. Due to this item being a health safety issue, the Homeowner had this item corrected by others. Contractor is to resolve this item in an appropriate manner.

Item 4 – Back sliding glass door damaged from bringing our appliances to and from the backyard and letting them sit in the heat without even being covered. The slider is not functioning properly and the contractor is to correct the condition in an appropriate manner.

The appliances do not appear to have received damage and no action is required regarding the appliances.

Item 5 – Dust everywhere, walls, in the vents. They had the air running while doing the work causing dirt/dust to be in the air ducts now. The homeowner sufficiently demonstrated that dust on the walls appears to be caused by the respondent. Contractor is to correct the condition, one time, in an appropriate manner.

Item 6 – Poor customer service, the owner lied when confronted, he denied his workers caused any of the damages, would act like he could not see any of the damages done. While the damage is blatantly obvious and poor customer service is a poor business practice, the ROC lacks jurisdiction on this item.

Item 7 – Eating and drinking our food/water when they were not permitted to. While the Inspector could not verify this item, it would be a display of unprofessional conduct.

Item 8 – Drinking beer on the job and leaving half smoked cigars in our garage. Please refer to item 7.

Item 9 – Going upstairs when they had no need to or authorization to and tracking some kind of oil or grease going up the stairs and stairwell. There are stains present but the Inspector cannot determine who left them.

Item 10 – Incomplete work; they removed our dishwasher, but didn’t bother to [do] the flooring where the dishwasher goes, they left the previous tile there. Contractor is to correct the condition in an appropriate manner.

The following items were added at the jobsite inspection and the contractor was not present to object:

Item 11- Contractor failed to reattach the carpet at the bottom riser of the stairs after performing his work at that location. Contractor is to correct the condition in an appropriate manner.

Item 12 – Contractor left fingerprints on the doors during reinstallation. Contractor is to correct the condition in an appropriate manner.

Item 13 – Contractor did a poor caulking job after reinstallation. Contractor is to correct the condition in an appropriate manner.

The following item was added by the Inspector as an administrative violation of Arizona state contracting laws (ARS 32-1154)

Item 14 – The Respondent[’s] contract does not meet the requirements set forth in ARS 32-1158 (minimum elements of a contract). The contract does not have an approximate completion date as required in ARS 32-1158.B.(4) and does not have the public notice to the consumer of the right to file an ROC complaint as required in 32-1158.B.(9). Contractor is to correct his documents to gain compliance with statute in an appropriate manner. (violation letter sent)

6. The Registrar issued a Citation and Complaint in Case No. 2011-3124 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(23). 7. On November 28, 2011, the Registrar issued a default Decision and Order in Case No. 2011-3124 due to Respondent’s failure to timely file an Answer to the Citation and Complaint. 8. On June 8, 2012, the Registrar issued an Order Granting Request for Rehearing that granted Respondent’s request for rehearing. 9. The Registrar forwarded Case No. 2011-3124 to the Office of Administrative Hearings, an independent agency, for an evidentiary rehearing. 10. On August 9, 2012, Inspector Dimond performed a prehearing jobsite inspection to view the Complaint items in preparation for the rehearing. Item 1 11. The evidence of record established that Respondent had corrected the coating in a professional and workmanlike manner so that it does not come up and scratch so easily. Inspector Dimond testified that he did not notice scratches in Complainants’ floor at the prehearing inspection, but did notice that an exercise ball used in Complainants’ gym had left negative impressions of the ball on the floor. Inspector Dimond also noticed that a yoga mat had stained the floor in the kitchen eating area. 12. There is no evidence that Respondent warranted to Complainants that the use of an exercise ball and a yoga mat would not damage the floor. It appears that the problem is the use of such equipment by Complainants without protecting the floor. For example, a barrier could be used under the equipment. Also, 3M has a yoga mat that would not damage the floor. 13. The evidence of record established that Respondent is not responsible for the current condition of the floor. Item 2 Respondent failed to comply with the Registrar’s written directive to correct stain placed on Complainants’ baseboards and walls. Since those remedial repairs are outside the scope of Respondent’s license, he shall have such work performed by a properly licensed contractor. Item 3 15. There is no evidence that Respondent resolved this matter with Complainants, who had hired another contractor to properly seat the toilets. Therefore, Respondent failed to comply with the Registrar’s Corrective Work Order as to this item. Item 4 16. Respondent failed to comply with the Corrective Work Order’s directive to correct the condition of Complainant’s sliding door by appropriate means. Respondent is responsible for repairing the door. 17. Pursuant to the Corrective Work Order, Respondent is not responsible for any action regarding Complainants’ appliances. Complainants failed to present credible evidence at the hearing to establish that Respondent had damaged their appliances. Item 5 18. There is credible evidence that Complainant’s walls have been cleaned. There is insufficient evidence to establish that the vents needed to be cleaned or have not been cleaned. Items 6, 7, and 8 19. Inspector Dimond determined that the Registrar lacks jurisdiction on these Complaint items. Complainants did not present any credible evidence to the contrary. Item 9 20. There are stains present on the stairs and the stairwell; however, Complainants failed to present credible evidence establishing that Respondent or his workers were responsible for the stains. Item 10 21. The Corrective Work Order required Respondent to correct the condition of the remaining original floor tile under Complainants’ dishwasher to match the acid-stained floor. The evidence of record established that the tile flooring remains under the dishwasher. Respondent is responsible for complying with the written directive requiring him to correct this condition. Item 11 22. Respondent failed to comply with the Corrective Work Order that required Respondent to correct the condition of the unattached carpet at the bottom riser of Complainants’ stairway in an appropriate manner. Respondent is responsible for complying with the Registrar’s written directive to remediate this Complaint item. Item 12 23. There is credible evidence of record that Respondent removed the fingerprints from the doors in a workmanlike manner. Item 13 24. The evidence of record established that Respondent did recaulk the pedestal sink. However, the caulking needs some final touchup to meet workmanship standards. Respondent is responsible for performing the final touchup. Item 14 25. The Corrective Work Order dated June 15, 2011, required Respondent to become compliant with the requirements of A.R.S. § 32-1158 within 15 calendar days from the date of the written directive. 26. At the hearing, Respondent presented documentary evidence in the form of an estimate/contract form dated August 9, 2012, the day before the rehearing, that is not compliant with the provisions of A.R.S. § 32- 1158. The form does not contain spaces for the following elements required by the statute: (i) the date the parties entered into the contract; (ii) the dollar amount of any deposit to be paid to Respondent; and (iii) the schedule of payments to be made by Complainant to Respondent. Respondent’s License No. K-5.183016-D 27. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 30, 2012. Such prior License record reflects that Respondent’s License No. K- 5.183016-D is current and that there are one open complaint and two resolved/settled/withdrawn complaints against Respondent’s License No. K-5.183016-D. Such prior License record also reflects the following License history: (i) Suspended for lack of bond from March 20, 2012, to May 10, 2012; (ii) Suspended for non-renewal from April 1, 2011, to May 5, 2011; (iii) Suspended for lack of bond from February 18, 2011, to May 5, 2011; (iv) Suspended for lack of bond from January 13, 2006, to January 18, 2006; (v) Suspended for lack of bond from November 22, 2006, to February 5, 2007; (vii) Suspended for lack of bond from January 15, 2009, to January 20, 2009; (viii) Suspended for lack of renewal from April 1, 2009, to April 15, 2009; and (ix) Suspended for lack of bond from January 16, 2010, to February 12, 2010. 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 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)(23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with the Registrar’s written directive to take corrective action, as described in Items 2, 3, 4, 10, 11, 13, and 14 of the Corrective Work Order. 4. 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. The areas of Respondent’s remaining deficient workmanship are identified in Conclusion of Law No. 3. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. At the hearing, Respondent had admitted into evidence its current estimate/contract form. However, that form does not comply with the statute. A.R.S. § 32-1158(A)(3) requires a contract to list the date the parties entered into the contract. Although Respondent’s estimate/contract form has a space for a date, Respondent’s form does not contain spaces for the date when parties sign the estimate/contract form. A.R.S § 32-1158(A)(7) requires a contract to contain the amount of any advanced deposit paid by Complainant to Respondent. Respondent’s estimate/contract form does not contain a space for such information. A.R.S. § 32-1158(A)(8) requires the payment schedule for a project. Respondent’s estimate/contract form does not contain a space for such information. Respondent also failed to timely comply with the Corrective Work Order directing Respondent to become fully compliant with the provisions of A.R.S. § 32-1158 within 15 days. 6. Based upon the evidence of record, the Administrative Law Judge concludes that restitution, pursuant to A.R.S. § 32-1156.01, is not appropriate in this matter. The acid stain applied to Complainants’ floor by Respondent meets workmanship standards. The damages to the acid-stained floor in Complainants’ gym and kitchen eating area are the result of their use of an exercise ball and yoga mat that have damaged the floor due to Complainants’ failure to protect the floor. There is no credible evidence that Respondent warranted that the floor could withstand the use of such products. It is more appropriate to require Respondent to perform the remedial repairs that the Corrective Work Order required as a condition placed on Respondent’s contracting license to avoid further disciplinary action. RECOMMENDED ORDER Respondent’s License No. K-5.183016-D shall be suspended on the effective date of the Order entered in Case No. 2011-3124 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Corrective Work Order. If Respondent provides the Registrar with written proof that Respondent has fully complied with the Corrective Work Order on or before the effective date of the Order entered in Case No. 2011-3124, and the Registrar approves such proof of compliance, then the above-provided license suspension shall not take place and this matter shall be closed. In addition to the foregoing license suspension, if any, Respondent’s License No. K-5.183016-D shall be placed on probation for a period of 30 days commencing on the effective date of the Order entered in Case No. 2011- 3124 or the date on which the Registrar approves written proof of Respondent’s compliance with the Corrective Work Order, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). Payment of the civil penalty shall be in certified funds. The failure by Respondent to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-3124 shall result in the automatic revocation of Respondent’s License No. K-5.183016-D, 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 the 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 the certification.

Done this day, August 30, 2012.

/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