ALJDEC decisions subject to certification as final

2011A-7010-ROC · Registrar of Contractors · 2012-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 14, 2012, at 8:00 a.m., August 29, 2012, at 8:00 a.m., and September 14, 2012, at 1:00 p.m. APPEARANCES: Patrick Caserta (hereinafter “Complainant”) appeared on his own behalf. Horizon Tile and Flooring Inc dba Ron’s Tile Installation (hereinafter “Horizon”) appeared through its attorney, Rick D. Sherman, Esq., Rick D. Sherman P.C. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Horizon is the holder of License No. C-48.210358-R issued by the Registrar of Contractors.[1] 2. This is a residential matter where Horizon performed construction work on Complainant’s residence. 3. Complainant was dissatisfied with Horizon’s workmanship and with Horizon’s failure to correct its work to his satisfaction despite his repeated demands that it do so. 4. When Horizon failed to comply with Complainant’s repeated demands, Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. Complainant alleged that the completion date and the date that work was last performed at his residence by Horizon was May 1, 2011. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Jeffrey Scott Wills (hereinafter “Inspector Wills”), conducted an onsite inspection. Inspector Wills issued a written Corrective Work Order on March 23, 2012, directing Horizon to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order provided, in pertinent part, as follows: CONTRACTOR TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING:

Read carefully as no action required by the contractor items are within this order

Contractor is to use appropriately licensed contractors to perform any and all corrective work beyond the scope of his current license as necessary

1. Grout on entire job is crumbling and has grooves in it. Grout is missing and disintegrating: The Complainant pointed out a few grout lines in the front room – near entry door and in the family room that the grout was slightly chipping. Complainant also pointed out a small void in the travertine flooring near the kitchen island. In the opinion of this inspector all of these areas meet standards. The Complainant said other areas of grout were coming out or up as well but he was not able to point any other areas out to the inspector. No action required by the contractor.

2. Tub in bathroom is not secured from behind so it pushes in and let’s [sic] water and moisture get under tub: In the opinion of this inspector, the tub appeared and felt secure as it was completely installed at the time of the inspection. Per the Complainant water is getting under the tub because the grout that was installed between the tub skirt and the travertine was removed by the Respondent or his worker. The current gap between the tub and the floor varies from ¼” to ½” in width. Respondent stated someone else – not him – removed this grout in an attempt to fix or repair. Complainant stated Hank a former employee of the Respondent did the work. Since the parties disagree who did the work in this area, this inspector is not able to confirm or verify this information. No action required by the contractor at this time.

3. There is a granite seam in the bathroom. I bought more than enough granite to have no seam and only one seam in kitchen. Contractor was supposed to replace and never did: The seam was pointed out to the inspector by the Complainant. This seam is on the right end of the countertop. In most cases, a single piece/section of granite is used for this type of installation. However, this seam is barely visible to the naked eye and the installation is excellent – in the opinion of this inspector. No action required by the Respondent.

4. Waterfall looks terrible. Needs repainting and so does everything else he did in backyard: In the opinion of this inspector the appearance of the waterfall looks good and the paint meets workmanship standards. Per the Complainant his issues with the waterfall are that it is slippery, he doesn’t like it – it’s not what he thought it would be (per both parties no drawings or renderings regarding waterfall appearance), it may fall over or collapse at some point in his pool or neighbor[’]s yard and the Respondent ran the electrical and plumbing to the waterfall which he is not licensed to do. Per the Respondent he understands he was out of scope for building the backyard pool waterfall. Per the Respondent there was a much smaller waterfall before this one was built, so the plumbing and electrical was already in place and was simply hooked up. Complainant disagrees regarding electrical and plumbing. Per the Respondent he did not run the plumbing or electrical from the existing pool pump located at the opposite corner of the backyard- it was already there. It is the opinion of this inspector that the Respondent is out of scope regarding constructing the waterfall and any connection of the utilities to the waterfall. This inspector is not able to confirm if the Respondent ran any plumbing or electrical from the pool pump area to the waterfall. Contractor to correct by appropriate means as necessary.

5. Backyard walls need to be repainted due to other paint getting on them and I paid for the walls to be repainted: The Complainant pointed out a few areas of the walls that the paint was flaking, overlapped with a different color or poor coverage. Per the Respondent he never agreed to do any painting of the backyard fence and was not done by him. Due to the lack of a written contract regarding this item and several other items contained within the complaint, this inspector is not able to confirm exactly what the scope of the work is other than what the parties agree to verbally at the time of the inspection. No action required by the contractor at this time regarding this item.

6. Entire outside of house needs to be repainted. I paid Ron to do this. He and his crew made a mess and got it on house and other places: The Complainant pointed out splotches or stains on the front porch and front concrete walkway from driveway to front porch/entry door area. The Complainant also pointed [out] some splotches on the pony wall surrounding the front porch. The splotches or stains on the concrete can only be seen when the area is wet. Complainant did wet these areas down at the time of the inspection. These splotches or stains were observed by the inspector on the concrete and the wall at the porch. Complainant stated they are caused from something the Respondent was using during the job that spilled onto the concrete and splattered on the wall. Respondent stated he does not [know] what these stains are and he or his workers did not cause this. The inspector is not able to determine what the stains are caused from or who caused them. No action required by the contractor. Contractor stated he never agreed to paint the outside of the home. The two parties disagree.

7. Inside house needs repainting due to mess Ron made and many damaged walls and doorframes. Ron agreed to do this because he was responsible for it: Per the Complainant the Respondent was going to paint the interior of the home. Per the Complainant one reason the Respondent agreed to paint is because during the course of the flooring work throughout the home and other projects, the Respondent nicked, scuffed and gouged baseboards, bottoms of doors and door jambs/casings. Per the Respondent he never agreed to do any interior painting. This inspector is not able to determine if the Respondent agreed to paint the interior of the home. No action required by the contractor. This inspector is also not able to determine if any of the nicks or gouges in any of these areas was caused by the Respondent. No action required by the contractor.

8. Damaged my brand new refrigerator in front. Want panels replaced: The Complainant pointed out a small dent in the lower freezer drawer of the kitchen refrigerator. Complainant stated this happened when the contractor was moving the refrigerator in and out of the opening during the flooring/kitchen work. This inspector is not able to determine if this dent was caused by the Respondent. No action required by the contractor.

9. Left my house a total mess and promised maid cleaning service. Never done: The Complainant pointed out tile spacers and drywall on top of the cabinets over the desk in the kitchen. This was observed by the inspector. Contractor to correct by appropriate means. Several walls in the home were tiled with travertine right up to the ceiling and above the upper cabinets.

10. Front door needs repainting due to scratches and dings and dents by his crew and him: The inspector is not able to determine if any of the scratches or dings in the front door was caused by the Respondent. No action required by the contractor.

11. Tile in whole house needs polishing and other work. He was paid for this: Per the Complainant several areas of the travertine flooring and travertine installed on the walls was not polished or polished very well. In the opinion of this inspector the travertine was polished and meets standards. No action required by the contractor.

12. Front concrete has some form of chemical spill from his job all over. Needs to be fixed: Refer to items #6 above. No action required by the contractor.

13. Broke a drainage rail in front between concrete – needs to replace: The Complainant pointed out a broken deco drain at the concrete for the walkway from the driveway to the front porch area. Respondent stated he knows nothing about this broken drain. This inspector cannot verify or confirm who or how the drain was broken. No action required by the contractor.

14. Refund of floor sealer from beginning of job: Both parties disagree on the amount of floor sealer that was used or not used and how much it costs. This inspector does not have the authority to render decisions or opinions regarding refunds, reimbursements, credits, etc.

15. Front and back yard needs gravel and rubber mulch replaced due to him dumping the [thin-set], grout and saw dust: Per the Complainant the Respondent and his workers made a mess of these areas and he had to purchase and spread more mulch in the backyard. Complainant also said the Respondent washed out [thin- set] and or paint in the rocks of his front yard and now some of the landscape rock needs to be replaced. The inspector did not observe any [thin-set], paint or damage to these areas. No action required by the contractor.

16. Roll shutter dented by his equipment. Needs to be replaced: As pointed out and stated by the Complainant, a metal exterior shutter was dented by the Respondent or his workers with the end of the pole of the pool net when the Respondent was fishing stuff out of the pool. Respondent denies this took place. This inspector is not able to confirm or verify this issue. No action required by the contractor.

17. Plumbing in master bath needs to be fixed. He used a flex pipe to connect the drain. It is really bad and not proper: This was pointed out by the Complainant. The Respondent stated he did do this work. The Complainant also pointed out the trim package installed in the master shower. Complainant[’s] opinion is that the handle for the shower is installed incorrectly. Complainant also pointed out the travertine used for a shelf in the shower is chipped. It is the opinion of this inspector that the Respondent should use properly licensed contractors to ensure the shower handle is installed correctly as well as the drain/p-trap within the vanity. It is the opinion of this inspector that the shelf installed in the master shower meets workmanship standards.

18. A top cabinet is falling off the wall. He was responsible for all cabinets new and old. I will explain: Complainant stated the Respondent applied caulking on the interior corner of the upper cabinets (left side cabinet) above the washer and dryer because they were coming apart. Respondent stated he did caulk the interior corner of the cabinet as requested by the Complainant. Complainant stated after the work was done by the Respondent the cabinet started to pull away from the wall more because the Respondent did repair correctly. Per the Complainant at the time of the inspection, the cabinet has now been replaced by another contractor prior to the inspection. No action required by the contractor.

19. Shade screens are dirty, stained and scratched due to his crew: The Complainant pointed out some scratches and dings on a few shade screen frames at the front and back of the home. Complainant stated the Respondent[’]s work crews ate their lunch at the front porch of the home and damaged these screen frames by leaning or sitting [on] the pop-outs around the windows. This inspector is not able to determine who or how the screens were scratched or dented. No action required by the contractor.

20. Yard gate broken. I replaced it twice and wall is coming off. I will explain: Per the Complainant, the 4’ gate leading to the backyard has been replaced by the manufacturer a couple of times because the gate was falling apart. Complainant also pointed out the pilaster that the gate latches to is cracked along the joint where the pilaster is fixed to the side of the home. Complainant stated the pilaster is cracked and loose because the Respondent did not properly prop the gate open or not prop it open at all when working in the backyard and the wind would catch it and slam it closed. Per the Respondent the gate was always propped open properly and it never slammed closed. This inspector is not able to determine how the pilaster became damaged or how long it has been this way. No action required by the contractor.

21. Gave him 350 for OG used 150. Owes 200: This could not be determined by the inspector as there are and were no written agreements or contracts between the parties. No action required by the contractor.

22. Various holes and chips in travertine. Needs to be replaced and fixed: The Complainant pointed out some voids within the travertine flooring and travertine installed on the walls including the laundry room. In the opinion of this inspector these are more of a void not chips. Travertine is a natural stone and small voids are an inherent part of travertine stone. In the opinion of this inspector all chips/voids pointed out by the Complainant were either filled with resin within the field of the stone or grout along the grout joints. In the opinion of this inspector these areas meet workmanship standards. No action required by the contractor.

23. Electrical work not up to code and par. Dishwasher plug and island plug have problems: Per the Respondent he did in fact install all lower cabinets in the kitchen including the kitchen island. The Respondent understands this work is not within the scope of his license. Per the Complainant since this work was done the electrical outlet for the dishwasher and the outlet at the island do not always work or work properly. Complainant pointed out the conduit from the box of the outlet to the floor of the island. Respondent stated he did not do any electrical work at all, that the Complainant hired someone to do this work after he installed the cabinets. Complainant disagrees. Due to the lack of a written contract or written agreements between the parties, this inspector is not able to determine who may have done this work. No action required by the contractor at this time.

24. Drywall never completed: Complainant stated the Respondent was to do some drywall work in the home such as filling or repairing holes in various locations. Per the Respondent no drywall work was done or agreed to by him. No action required by the contractor.

25. Custom litter box never completed: Complainant stated the Respondent was to build this litter box in the laundry room but never did so he hired someone else to do it. Complainant stated the Respondent was paid for this work. Respondent stated he was paid nothing for this work and the agreement was that he would provide the labor for free for the custom litter box if the Complaint provided/paid [for] the material. Parties disagree with one another. Per the Complainant the litter box was completed by others prior to the inspection. No action required by the contractor.

26. Tile in laundry room not completed: Per the Complainant, travertine was also supposed to be installed behind the washer and dryer and above the upper cabinets in the laundry room. Respondent disagrees stating the Complainant kept changing his mind and adding more tile work in the laundry room but there was never an agreement to install travertine behind the washer and dryer or above the cabinets. This inspector is not able to make a determination regarding how much or exactly where the travertine was to be installed. No written contracts, drawings or renderings. No action required by the contractor.

27. Granite is too long and not even in some places: Per the Complainant, this refers to the granite countertops installed in the kitchen. In the opinion of this inspector, the contractor worked beyond the scope of his license regarding the granite countertop installation. However, the inspector did not observe any granite that is not even in some places. No action required by the contractor. In the opinion of this inspector, the granite installation in the kitchen is excellent and meets standards. No action required by the contractor.

28. Lied and said he had contractor license’s [sic] to do entire job and other things: Per the Respondent is aware that he did work beyond the scope of his license regarding parts of this job. Contractor to correct by appropriate means as necessary.

29. This list is not inclusive and there probably is more to come: This is per the Complainant as stated within the complaint.

30. Had me make checks out to him instead of Horizon Tile: As filed with the complaint, all checks were made payable to Ron Jones who is the owner of Horizon Tile and Flooring Inc. dba: Ron’s Tile Installation.

31. Owes me a refund of $14,000.00: This inspector does not have the authority to render a decision or opinion regarding refunds, reimbursements, credits, etc.

7. On June 8, 2012, Complainant filed written correspondence that included a request to amend his complaint and Respondent filed a written response in objection thereto. On June 15, 2012, this Tribunal recommended that the Complaint in this matter be amended to include the additional items set forth in Complainant’s written correspondence and that Respondent be deemed to have denied the allegations set forth in the amendment, and that the assigned Agency Inspector conduct another onsite inspection prior to the scheduled hearing and be prepared to present testimony regarding the new items set forth in Complainant’s written correspondence. No amendment to the Complaint was required for plumbing work because those items had already been addressed in the original Complaint. 8. Inspector Wills testified that he performed a pre-hearing inspection at Complainant’s residence on August 13, 2012. Inspector Wills stated that he examined each of the items listed on the Corrective Work Order as well as the additional 13 items set forth in Complainant’s request to amend the Complaint. Inspector Wills testified that Horizon should be required to retain a licensed plumber to inspect and approve all of the out-of-scope plumbing work that Horizon performed at Complainant’s residence. Inspector Wills stated that the remaining items of the Request to Amend the Complaint either were not sufficiently demonstrated to be Horizon’s responsibility or were shown to be within applicable workmanship and industry standards.[2] 9. Inspector Wills testified that Horizon performed a good tile installation in Complainant’s residence. Inspector Wills stated that he observed no problems with the plumbing work performed in Complainant’s residence.[3] 10. Inspector Wills stated that he saw no work performed by Horizon that failed to comply with applicable workmanship and industry standards.[4]

11. Inspector Wills opined that Horizon had fully complied with the terms of the Corrective Work Order.[5] 12. Inspector Wills testified that Horizon may have violated the charged provision of A.R.S. § 32-1154(A)(2) by performing plumbing work that was beyond the scope of Horizon’s License No. C-48.210358-R that may have required a building permit.[6] 13. Inspector Wills testified that Horizon may have performed work on Complainant’s residence while License No. C-48.210358-R was suspended for non-renewal.[7] 14. Inspector Wills acknowledged that he did not know if a building permit was required for the out-of-scope plumbing work performed by Horizon.[8] 15. Complainant’s wife, Terry Lynn Caserta (hereinafter “Ms. Caserta”), testified that Horizon did not complete its construction work and that the construction work performed by Horizon was unacceptable. Ms. Caserta stated that Horizon represented that it could perform any type of construction work that Complainants wanted performed. Ms. Caserta testified that Horizon performed plumbing work on Complainant’s residence without a license. Ms. Caserta testified that the tile grout in Complainant’s residence had failed and required correction.[9] 16. Ms. Caserta testified that she observed Horizon’s employees removing tile from Complainant’s residence without Complainant’s authorization.[10] 17. Ms. Caserta testified that Horizon performed electrical work on Complainant’s residence without a license.[11] 18. Complainant’s son, Brandon Patrick Caserta (hereinafter “Mr. B. Caserta”), testified that he is 15 years old and that he observed one of Horizon’s employees inadvertently damage Complainant’s plastic drain pipe in Complainant’s front yard by pushing a wheel barrel loaded with tile across the plastic drain.[12] 19. Mr. B. Caserta testified that he saw Horizon’s employees removing tile from Complainant’s residence and notified his father.[13] 20. Complainant testified that Horizon performed unlicensed, substandard plumbing work at his residence. Complainant stated that Horizon replaced Complainant’s bathtub in an unworkmanlike manner.[14] 21. Complainant testified that he bought three “giant” slabs of granite and that Horizon had agreed that there would be no seams in Complainant’s countertops. Complainant stated that seam in the bathroom countertop is unsatisfactory.[15] 22. Complainant testified that the waterfall that Horizon worked on looks terrible and is unsatisfactory. Complainant stated that Horizon performed plumbing and electrical work on the waterfall. Complainant acknowledged that the waterfall is complete but stated that it is not what he expected and not what Horizon promised.[16] 23. Complainant testified that there are spots on the backyard walls caused by Horizon. Complainant stated that Horizon had agreed to repaint the backyard walls and had failed to do so.[17] 24. Complainant testified that Horizon left a “huge mess” at his residence and that Horizon agreed to repaint the entire house if Complainant furnished the paint. Complainant acknowledged that he did not buy the paint.[18] 25. Complainant testified that Horizon damaged the interior paint in his residence and that Horizon agreed to repaint the interior of the residence. Complainant stated that Horizon failed to comply with its agreement.[19] 26. Complainant testified that Horizon damaged a door panel on his new stainless steel refrigerator during its work in Complainant’s kitchen. Complainant stated that there was no damage to the refrigerator before Horizon performed work in Complainant’s kitchen. Complainant acknowledged that he did not see who or what caused the damage but stated that he believes that Horizon damaged the refrigerator. Complainant testified that Horizon agreed to “take care of it.”[20] 27. Complainant testified that Horizon agreed to provide maid cleaning services for his residence because of the mess that Horizon left in Complainant’s residence. Complainant stated that Horizon failed to comply with its agreement.[21] 28. Complainant testified that he believed that Horizon damaged his metal front door during its work in his residence. Complainant stated that Horizon agreed to correct the damage to Complainant’s front door and failed to comply with its agreement.[22] 29. Complainant reviewed each of the items on his Complaint and the items on his request for amendment to his complaint and asserted that each of the items set forth in the Complaint and in the request for amendment failed to comply with applicable workmanship and industry standards and that Horizon failed to comply with its agreement to correct its construction work to his satisfaction. Complainant sharply disagreed with the testimony of Inspector Wills. Complainant testified that Horizon removed tile from Complainant’s residence without his authorization.[23] 30. Ronald Harmon Jones (hereinafter “Mr. Jones”) testified that he is the owner of Horizon. Mr. Jones stated that he informed Complainant that Horizon’s License No. C-48.210358-R was a tile installation license. Mr. Jones denied that Horizon had informed Complainant that Horizon could perform electrical work at Complainant’s residence. Mr. Jones stated that the tile work that Horizon performed at Complainant’s residence exceeded applicable workmanship and industry standards. Mr. Jones stated that he had previously replaced all of the grout at Complainant’s residence because the first grout installation was “powdery.”[24] 31. Mr. Jones testified that his original estimate was exclusively for tile work. Mr. Jones stated that Complainant asked Horizon to expand the scope of the tile work to include the installation of cabinets for $700.00. Mr. Jones stated that he thought that the cabinet installation would be covered under the “handyman” exemption. Mr. Jones acknowledged that the installation of the cabinets was beyond the scope of Horizon’s License No. C-48.210358-R.[25] 32. Mr. Jones testified that Horizon always gave Complainant an estimate for the cost of all phases of the tile installation throughout the construction process. Mr. Jones stated that Complainant paid Horizon with one payment for $4,800.00 through PayPal and the rest of the payments were by check. Mr. Jones stated that Horizon received no cash from Complainant during the construction project.[26] 33. Mr. Jones denied that Horizon had agreed to paint Complainant’s residence. Mr. Jones stated that Complainant did not pay Horizon to paint Complainant’s residence and that Horizon performed no painting work on Complainant’s residence.[27] 34. Mr. Jones testified that Horizon caused no damage to Complainant’s refrigerator. Mr. Jones stated that he observed that the refrigerator now has more “dings” since the original jobsite inspection.[28] 35. Mr. Jones testified that travertine tile in Complainant’s residence had been polished to meet applicable workmanship and industry standards.[29] 36. Mr. Jones testified that Horizon fully complied with the terms of the Corrective Work Order. Mr. Jones acknowledged that Horizon does not possess a plumbing license. Mr. Jones stated that the plumbing work performed by Horizon was incidental to the tile work performed by Horizon. Mr. Jones testified that he was not aware at that time that a plumber’s license was required for such incidental plumbing work. Mr. Jones acknowledged that today, after talking with employees of the Registrar of Contractors, he realizes that Horizon performed plumbing work that was beyond the scope of its License No. C-48.210358-R. Mr. Jones denied that Horizon had performed any electrical work at Complainant’s residence.[30] 37. Mr. Jones testified that Complainant was dissatisfied with his existing “small” waterfall. Mr. Jones stated that he knew someone who could build a bigger and better waterfall. Mr. Jones acknowledged that he provided Complainant with a bid for expanding the size of Complainant’s waterfall. Mr. Jones stated that he employed an individual who had previous experience in constructing waterfalls and then left for an out- of-town trip. When he returned, Mr. Jones observed that Complainant had increased the size of his waterfall substantially. Mr. Jones stated that Horizon did not authorize the performance of any electrical or plumbing work on the waterfall. Mr. Jones acknowledged that someone had performed electrical and plumbing work on the waterfall. Mr. Jones stated that the performance of electrical and plumbing work on the waterfall was not part of the construction agreement for the waterfall.[31] 38. Mr. Jones testified that Complainant had directly paid Horizon’s employee extra money to enlarge the size of the waterfall and to perform electrical and plumbing work on the waterfall without Horizon’s knowledge or approval. Mr. Jones testified that Complainant retained several of Horizon’s employees to work directly for Complainant without Horizon’s knowledge or approval. Mr. Jones stated that all checks were to be made out to either Mr. Jones directly or to Horizon. There was no dispute that Complainant issued some checks directly to Horizon’s employees. Mr. Jones stated that he terminated all of Horizon’s employees who worked directly for Complainant without his permission.[32] 39. Mr. Jones denied that Horizon removed any of Complainant’s tiles from Complainant’s residence. Mr. Jones acknowledged that Horizon removed tile that belonged to Horizon from Complainant’s residence. Mr. Jones stated that the tile that was removed from Complainant’s residence belonged to Mr. Jones personally. Mr. Jones testified that the tile inadvertently was unloaded at Complainant’s residence. When Mr. Jones observed that the tile had been unloaded, he caused his tile to be immediately reloaded on Horizon’s truck.[33] 40. Mr. Jones acknowledged that Horizon failed to use a written contract for its various construction agreements with Complainant. Mr. Jones stated that he did provide Complainant with written itemized invoices for each construction project. Mr. Jones stated that he was not aware of the statutory requirement for a written contract at that time.[34] 41. Mr. Jones testified that his computer is frozen and he cannot retrieve any of the invoices that were provided to Complainant. Mr. Jones stated that Horizon did not create a separate written contract for Complainant’s construction projects because Complainant accepted his detailed estimates and invoices. Mr. Jones testified that Horizon consistently furnished detailed estimates and invoices to Complainant. Mr. Jones acknowledged that the estimates and invoices were not signed.[35] 42. Complainant stated that Horizon emailed the invoices and estimates to Complainant’s wife’s email address rather than to his email address, so he did not see them.[36] 43. Administrative notice is taken of Horizon’s prior license record as reflected on the Registrar of Contractors’ public website on October 1, 2012. Such prior license record reflects that License No. C-48.210358- R of Horizon was suspended for lack of bond from November 15, 2011, through December 27, 2011, was suspended for non-renewal from September 1, 2011, through December 27, 2011, and is now current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The credible evidence of record failed to support a finding that Horizon abandoned or refused to perform construction work at Complainant’s residence. This Tribunal concludes that Complainant failed to meet his burden of proof to establish a violation of the charged provision of A.R.S. § 32-1154(A)(1).[37] 4. Credible evidence supports findings that establish that Horizon performed plumbing work at Complainant’s residence. There was no credible evidence that the plumbing work performed by Horizon required a building permit or an inspection by the local building authority. This Tribunal concludes that Complainant failed to meet his burden of proof to establish a violation of the charged provision of A.R.S. § 32- 1154(A)(2).[38] 5. Credible testimony and evidence established that during the first onsite inspection, the assigned Agency Inspector observed that Horizon had failed to fully cleanup after the completion of its construction work. This Tribunal concludes that Horizon violated the charged provision of A.R.S. § 32-1154(A)(3),[39] namely, A.A.C. R4-9-108.[40] 6. Horizon knowingly contracted beyond the scope of its License No. C- 48.210358-R. This Tribunal concludes that Horizon violated the charged provision of A.R.S. § 32-1154(A)(17).[41] 7. Horizon’s License No. C-48.210358-R was suspended for non-renewal from September 1, 2011, through December 27, 2011, and was suspended for lack of bond from November 15, 2011, through December 27, 2011. The credible evidence of record failed to support a finding that Horizon performed construction work at Complainant’s residence after May 1, 2011. This Tribunal concludes that Complainant failed to meet his burden of proof to establish a violation of the charged provision of A.R.S. § 32- 1154(A)(18).[42] 8. Horizon fully complied with the terms of the Corrective Work Order. This Tribunal concludes that Complainant failed to meet his burden of proof to establish a violation of the charged provision A.R.S. § 32- 1154(A)(23).[43] RECOMMENDed order

In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order that License No. C-48.210358-R of Horizon shall be suspended until the Registrar of Contractors receives and accepts written proof that Horizon has caused a properly licensed contractor to inspect and approve all plumbing work performed by Horizon at Complainant’s residence. It is further recommended that if on or before the effective date of this Order, Horizon through a properly licensed plumbing contractor accomplishes the above-described corrective action, then the above provided License suspension shall not take place and that instead, License No. C-48.210358-R of Horizon shall be placed on disciplinary probation for a period of 120 days.

In the event of certification of this 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, September 28, 2012. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.A.C. R4-9-103(B) provides the scope of a C-48 license for Ceramic, Plastic and Metal Tile, as follows: Installation and repair of ceramic and facsimile tile products common to the industry. This scope includes the C-48R subclassification. [2] H.R. at 53:12-1:02:30. [3] H.R. at 2:07:20-2:08:54. [4] H.R. at 2:08:55-2:11:48. [5] H.R. at 2:48:01-2:48:16. [6] H.R. at 2:48:53-2:49:32. [7] H.R. at 2:49:445-2:50:06. [8] H.R. at 2:50:13 -2:50:47. [9] H.R. at 2:59:00-3:16:46. [10] H.R. at 3:17:25-3:19:06. [11] H.R. at 3:24:40-3:25:01. [12] 8/29/12 Hearing Record (hereinafter “8/29/12 H.R.”) at 1:30:30- 1:31:28. [13] 8/29/12 H.R. at 1:33:40-1:34:02. [14] 8/29/12 H.R. at 143:30-1:46:48. [15] 8/29/12 H.R. at 1:47:00-1:50:56. [16] 8/29/12 H.R. at 1:51:00-1:59:58. [17] 8/29/12 H.R. at 2:00:20-2:00:59. [18] 8/29/12 H.R. at 2:01:00-2:02:03. [19] 8/29/12 H.R. at 2:02:04-2:04:33. [20] 8/29/12 H.R. at 2:04:34-2:08:46. [21] 8/29/12 H.R. at 2:08:47-2:09:51. [22] 8/29/12 H.R. at 2:09:52-2:11:49. [23] 8/29/12 H.R. at 2:11:50-3:10:19. [24] 8/29/12 H.R. at 4:03:00-4:12:20. [25] 8/29/12 H.R. at 4:12:21-4:17:19. [26] 8/29/12 H.R. at 4:23:50-4:26:44. [27] 8/29/12 H.R. at 4:26:45-4:29:30. [28] 8/29/12 H.R. at 4:29:21-4:31:46. [29] 8/29/12 H.R. at 4:36:23-4:37:15. [30] 8/29/12 H.R. at 4:38:08-4:57:18. [31] 8/29/12 H.R. at 4:57:19-5:09:12. [32] 8/29/12 H.R. at 5:09:13-5:14:50. [33] 8/29/12 H.R. at 5:22:00-5:28:40. [34] 8/29/12 H.R. at 5:33:00-5:35:22. The Registrar of Contractors’ Citation and Complaint in this matter did not charge a violation of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, which sets forth the requirements for contractors’ contracts with property owners that exceed $1,000.00. [35] 9/14/12 Hearing Record (hereinafter “H.R.”) at 3:13-24:00. [36] 9a/14/12 H.R. at 26:00-28:48. [37] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [38] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [39] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [40] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[41] A.R.S. § 32-1154(A)(17) includes among the grounds for disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee. [42] A.R.S. § 32-1154(A)(18) includes among the grounds for disciplinary action against a contractor’s license, contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status. [43] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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