ALJDEC decisions subject to certification as final

2012A-3294-ROC · Registrar of Contractors · 2013-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2013, at 8:00 a.m. APPEARANCES: Mary C. Kelly (hereinafter “Complainant”) appeared on her own behalf. Majestic Stone Works LLC (hereinafter “Majestic”) appeared through its Qualifying Party, Raymond Lee Jones. 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. Majestic is the holder of License No. C-5.252872-R issued by the Registrar of Contractors. 2. This is a residential matter where Majestic installed concrete counters, concrete sinks, concrete flooring, and a concrete shower pan in the master bathroom at Complainant’s residence located at 4654 E. Hubble Street, Phoenix, Arizona. 3. Complainant was dissatisfied with Majestic’s workmanship. The parties were unable to resolve their differences and Complainant filed a formal Complaint against Majestic with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Jim Dimond (hereinafter “Inspector Dimond”), conducted an onsite inspection on August 2, 2012. Inspector Dimond’s notes of the onsite inspection provided, in pertinent part, as follows: 1- The wax is not installed and [Majestic] advised me he is willing to put it on. H/O is refusing [access]. She has even told me that she is contemplating a[n] [Injunction Against Harassment]. She says he has made threats but nothing said supports that. 2- [Majestic] acknowledged that [t]his needs to be done. 3- Threats- nothing presented supports this claim. 4- Add-on- [Complainant] removed door frames after floor was down and now areas need to be added and touched up. 5- [Majestic] stated that the [Complainant] hasn’t let him back in the house since 7/4

5. On August 6, 2012, Inspector Dimond issued a Corrective Work Order directing Majestic to perform designated corrective action on Complainant’s residence. 6. The Corrective Work Order provided, in pertinent part, as follows: Item 1- (condensed) contractor has been paid in full but has yet to return to install the wax coat and finish the floor.

Contractor is to complete the wax coat on the floor in an appropriate manner. As to the finishing the areas at the door frames [,] the floor was installed prior to a change out of the door frames resulting in unfinished areas. Completing these areas would be an ‘extra’ and a change order would be appropriate.

Item 2- (condensed) Contractor has not returned to fill the seams in the countertop behind the stove.

Contractor is to correct the condition in an appropriate manner.

Item 3- (condensed) Shower pan was not sealed properly before and after the installation resulting in staining.

Contractor is to correct the condition in an appropriate manner.

Item 4- (condensed) Contractor made threats and took photos of work.

Threats would fall under the purvue of other agencies. The ROC lacks jurisdiction regarding the taking of pictures.

7. Inspector Dimond testified that there was no pre-hearing inspection because on or about August 23, 2012, Complainant sold the residence where Majestic performed the work. Inspector Dimond stated that Complainant informed him that she was going to have the concrete shower pan corrected on August 22, 2012, because the house was closing escrow on August 23, 2012. Inspector Dimond testified that there could have been numerous causes for the staining on the concrete shower pan. Inspector Dimond stated that the staining on the concrete shower pan could have been successfully removed.[1] 8. Inspector Dimond’s testimony is found to be credible. 9. Complainant testified that Majestic contacted her approximately thirty days after the Corrective Work Order was issued. Complainant stated that she filled in the areas around the doorframes herself and that she cleaned the floors. Complainant testified that Majestic eventually performed all of the corrective work directed in the Corrective Work Order except for the staining on the concrete shower pan. Complainant stated that she had a very poor working relationship with Majestic’s qualifying party, Raymond Lee Jones (hereinafter “Mr. Jones”). Complainant testified that the concrete shower pan did not drain properly. Complainant stated that she asked her plumber to “smooth one area of pan to allow water to drain.” Complainant testified that Mr. Jones stated that he would not correct the concrete shower pan because it had been modified by Complainant’s plumber. Complainant stated that the work performed by her plumber was the same type of work that Mr. Jones stated that he was going to perform on the concrete shower pan. Complainant testified that after Majestic failed to comply with the terms of the Corrective Work Order in a timely manner, she was required to retain another contractor to remove the sealant and grind the shower pan,[2] and then was required to cause another contractor to re-coat the concrete shower pan.[3] Complainant stated her contract with Majestic was just for the floors.[4] 10. Mr. Jones testified that Majestic initially contracted with Complainant to just install the concrete flooring. Mr. Jones acknowledged that Majestic agreed to touch-up the concrete flooring when the project was completely finished. Mr. Jones stated that the concrete shower pan was the first thing that Majestic constructed. Mr. Jones testified that he installed the concrete shower pan and that he applied the polyurethane on the concrete shower pan the next day. Mr. Jones stated that he informed Complainant that he would “rough-up” the shower pan and fill in the pin holes that were causing the discoloration. Mr. Jones testified that on July 4, 2012, he declined to comply with his previous offer to touch-up Complainant’s floor unless Complainant agreed to a change order for an extra $250.00. Mr. Jones stated that Complainant then directed him to leave the residence. Mr. Jones testified that he returned to the residence during August 2012, and observed that Complainant had ground down a “huge section” of the shower pan. Mr. Jones testified that Majestic completed all of the items on the Corrective Work Order except for the correction of the concrete shower pan. Mr. Jones stated that Complainant “ruined” the concrete shower pan. Mr. Jones acknowledged that he informed Complainant that Majestic would not be willing to perform corrective work on the concrete shower pan because it had been destroyed by another contractor.[5] 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. Majestic failed to complete the wax coat on the floor, failed to fill-in seams in the kitchen countertop, and failed to properly seal the concrete shower pan. Credible testimony and evidence established that after the Corrective Work Order was issued, Majestic properly completed the wax coat on the floor and filled in the seams in the kitchen countertop. The concrete shower pan had been modified by an individual working for the Complainant. Majestic was not responsible for the correction of the concrete after its modification pursuant to the applicable provisions of A.R.S. § 32-1155(C)(2).[6] Because construction is not a perfect art and contractors must be allowed an opportunity to correct their work to bring it to applicable standards, this Tribunal concludes that Majestic corrected its work to within applicable industry standards and that Complainant failed to satisfy her burden to establish that Majestic violated the charged provision of A.R.S. § 32-1154(A)(3),[7] namely, A.A.C. R4-9-108.[8] 4. Credible testimony and evidence established that Majestic properly completed the wax coat on the floor and filled in the seams in the kitchen countertop to comply with the Corrective Work Order. The concrete shower pan had been modified by an individual working for the Complainant. Pursuant to the applicable provisions of A.R.S. § 32- 1155(C), Majestic was not responsible for the correction of the concrete after its modification. This Tribunal concludes that Complainant failed to satisfy her burden to establish that Majestic violated the charged provision of A.R.S. § 32-1154(A)(23).[9] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, be dismissed. 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, February 28, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/11/13 Hearing Record (hereinafter “H.R.”) at 15:33-26:31. [2] See Exhibit C-4 (Invoice from Juan Moreno for $398.42 for “application of 2 coats epoxy paint to master shower pan, plus material). This Tribunal could not find an appropriate contractor’s license for a Juan Moreno at the Registrar of Contractors’ public website on February 26, 2013. [3] See Exhibit C-4 (Invoice from Lazaro Plumbing for $170.00 for installing new drain and grinding shower pan). This Tribunal could not locate a contractor’s license for Lazaro Plumbing at the Registrar of Contractors’ public website on February 26, 2013. [4] H.R. at 26:45-44:51. [5] H.R. at 45:00-1:10:06. [6] A.R.S. § 32-1155 provides, in pertinent part, as follows:

C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

2. The contractor's work has been subject to neglect, modification or abnormal use.

[7] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [8] 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.

[9] 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.

-----------------------

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