ALJDEC decisions subject to certification as final

2012A-4521-ROC · Registrar of Contractors · 2013-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2013, at 8:00 a.m. APPEARANCES: Jinju Park (hereinafter “Ms. Park” or “Complainant”) represented herself. Custom Backyard Creations LLC (hereinafter “Custom”) was represented by its qualifying party and member, Lawrence George Zoma. 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 Custom is the holder of License No. C-5.275995-R issued by the Registrar of Contractors. This is a residential matter where the parties entered into a construction agreement for Custom to perform coating, staining, leveling and polishing work on Ms. Park’s concrete floor for the total sum of $1,200.00.[1] Ms. Park was dissatisfied with Custom’s workmanship and requested that Custom correct its workmanship to her satisfaction. Ms. Park contacted Custom on or about September 10, 2012, and offered to provide an opportunity to Custom to properly correct its construction work or, in the alternative, return her money to her.[2]. When Custom failed to comply with Ms. Park’s request, she filed a formal Complaint against Custom with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Randy Cason (hereinafter “Inspector Cason”), conducted an onsite inspection. Inspector Cason issued a written Corrective Work Order on October 5, 2012, directing Custom to perform designated corrective work on Complainant’s residence. The Corrective Work Order provided, in pertinent part, as follows: Complaint #1- Floors not level throughout entire site. The Respondent is to correct/complete per the Contract Specifications (written and verbal) and within the scope of their C-5 Restricted (concrete coating) license by appropriate means.

Complaint #2- Stain is uneven everywhere. Inspected the finish coating material, found that the installation of the material was not completed in a workman like manner and there are trowel marks left in the finish surface. The Respondent is to correct by appropriate means.

Complaint #3- Stain on bathtub and walls. Found the finish flooring material on the skirt of the tub and also all around the base of the walls. The Respondent is to correct by appropriate means.

Complaint #5- The Contractor threatened to sue. The ROC doe not have jurisdiction over how a contractor conducts their business with their customers.

Complaint #6- The Contractor never provided me a copy of the contract. The Respondent is to correct per [A.R.S. §] 32-1158 by appropriate means.

Complaint #7- The price on the contract was incorrect. The contractor said he would fix it later, but [now] claims he gets more money than agreed upon. The Respondent is to comply with this Corrective Work Order and per the Contract Specifications (written and verbal) regarding the set agreed price of this project by appropriate means.

Complaint #8- The contractor failed to disclose that they did not have a license to level floors. The Respondent is to comply with this Corrective Work Order within the scope of their C-5 Restricted (concrete coatings) license by appropriate means.

Complaint #9- The CTR failed to disclose that they had never put in white concrete floors and did not know how. The Respondent is to comply with this Corrective Work Order within the scope of their C-5 Restricted (concrete coating) license by appropriate means.

The parties were unable to resolve their dispute and on November 30, 2012, Complainant requested that her Complaint against Custom be reopened.[3] On June 20, 2013, the Registrar of Contractors issued a formal Citation and Complaint charging Custom with possible violations of A.R.S. § 32- 1154(A)(1), A.R.S. § 32-1154(A)(9), A.R.S. § 32-1154(A)(13) (namely A.R.S. § 32-1158(B)(4), (6), (7), (8), and (9)), and A.R.S. § 32-1154(A)(23).

Testimony of Registrar Inspector Randy Cason Inspector Cason testified that he performed a pre-hearing inspection at Ms. Park’s residence on October 24, 2013. Inspector Cason stated that Ms. Park informed him that Custom had failed to comply with the Corrective Work Order and that the construction work on Ms. Park’s concrete floors had been corrected by others. Inspector Cason reviewed the Corrective Work Order and testified that at his first inspection at Ms. Park’s residence, he observed that the concrete floor was not level. Inspector Cason stated that he had observed trowel marks in the concrete overlay applied by Custom. Inspector Cason testified that he observed that the staining on the concrete floor was uneven and that stain and concrete material had been splashed on the skirt of the bathtub and around the walls of the rooms where the concrete work was performed. Inspector Cason testified that he had checked with his supervisor and verified that Custom could perform concrete leveling work as long as it was incidental to Custom’s concrete overlay work. Inspector Cason stated that the concrete leveling, concrete staining, and concrete coating work performed by Custom at Ms. Park’s residence failed to comply with applicable workmanship and industry standards. Inspector Cason opined that Custom failed to comply with the terms of the Corrective Work Order. Inspector Cason testified that the Work Invoice utilized by Custom as the parties’ construction agreement failed to comply with the provisions of A.R.S. § 32-1158. Inspector Cason stated that the Work Invoice did not contain an estimated date of completion, did not contain the total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes, did not contain the dollar amount of any progress payment and the stage of construction at which the contractor would be entitled to collect the progress payment, did not inform Ms. Park that she had a right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A), did not contain the Registrar’s telephone number and website address, and did not contain the applicable time period set forth in A.R.S. § 32-1155(A) to file complaints with the Registrar. Inspector Cason’s testimony is found to be credible. Testimony of Michael L. Mendelshon Michael L. Mendelshon (hereinafter “Mr. Mendelshon”) testified that he is the general manager for Mendelshon Construction, LLC (hereinafter “Mendelshon”).[4] Mr. Mendelshon stated that Ms. Park contacted Mendelshon to correct the construction work performed by Custom. Mr. Mendelshon stated that he personally observed the concrete work performed by Custom. Mr. Mendelshon testified that the construction work performed by Custom was “amateurish.” Mr. Mendelshon stated that he personally observed that the concrete floor had humps and divots in it. Mr. Mendelshon testified that the staining on the concrete floor was uneven. Mr. Mendelshon stated that “the top coat looked like it was installed by someone who did not know what they were doing.” Mr. Mendelshon testified that Custom abandoned the floor before it was finished. Mr. Mendelshon stated that no sealer had been applied to the floor. Mr. Mendelshon testified that it was obvious that the concrete floor had not been properly prepared before the new coating was applied. Mr. Mendelshon testified that Mendelshon charged Ms. Park the sum of $1,730.00 to remove the topcoat that was applied by Custom. Mr. Mendelshon stated that Mendelshon charged Ms. Park an additional $3,842.00 for the installation of a metalized epoxy with polyurethane topcoat after Custom’s work was removed. Mr. Mendelshon testified that the metalized epoxy with polyurethane floor coating is an upgrade on the material installed by Custom.[5] Mr. Mendelshon’s testimony is found to be credible. Testimony of Johnny Cadez Johnny Cadez (hereinafter “Mr. Cadez”) testified that he was an employee of Mendelshon. Mr. Cadez stated that he personally performed the corrective work on Ms. Park’s floor. Mr. Cadez testified that he observed trowel marks and bubbles in the concrete floor coating. Mr. Cadez opined that Custom had failed to properly prepare the floor before Custom applied its concrete coating to Ms. Park’s floor. Mr. Cadez stated that the floor was visually out of level before he corrected it. Testimony of Lawrence George Zoma Custom’s qualifying party and member, Lawrence George Zoma (hereinafter “Mr. Zoma”), testified that Custom contracted with Ms. Park to install a concrete overlay on Ms. Park’s floor. Mr. Zoma denied that Custom contracted to level Ms. Park’s floor. Mr. Zoma stated that at the onset of the construction project, Ms. Park demonstrated the method of application for the concrete floor coating. Mr. Zoma testified that Ms. Park’s first complaint was regarding the color of the floor coating. Mr. Zoma testified that Custom offered to change the color of the floor coating for an additional price. Mr. Zoma stated that Ms. Park rejected Custom’s offer of corrective work for additional money. Mr. Zoma testified that there was a lack of communication between the parties. Mr. Zoma acknowledged that there were trowel marks in the concrete coating installed by Custom and that there was stain on Ms. Park’s bathtub and along the base of the walls in Ms. Park’s residence. Mr. Zoma stated that the construction project was not completed. Mr. Zoma testified that Custom would have resolved all workmanship issues with the floor when Custom completed the floor. Mr. Zoma testified that Ms. Park denied access to Custom and prevented Custom from complying with the terms of the Corrective Work Order. Mr. Zoma stated that Custom repeatedly offered to return Ms. Park’s money to her. Mr. Zoma testified that Custom stopped work on the construction project because it became clear that Custom would not be able to satisfy Ms. Park’s demands. Testimony of Jinju Park Jinju Park (hereinafter “Ms. Park”) testified that she is an attorney. Ms. Park stated that she obtained bids from several contractors for the construction work at her residence. Ms. Park testified that she chose Custom because it was the low bidder. Ms. Park testified that she was very dissatisfied with the construction work performed by Custom. Ms. Park stated that Custom abandoned the construction project when she expressed her dissatisfaction and refused to return unless she agreed to pay Custom additional money. Ms. Park testified that the leveling of her floor was a requirement from the onset of the construction project. Ms. Park stated that Custom specifically stated that it was licensed to perform concrete leveling work at her residence. Ms. Park denied that she had ever denied access to Custom. Ms. Park testified that Custom did not contact her and offer to perform any corrective work at her residence in response to the Corrective Work Order. Ms. Park testified that she did not contract with Mendelshon until after the time period set forth in the Corrective Work Order had expired. Ms. Park’s testimony is found to be credible. Administrative notice is taken of Custom’s prior license record as reflected on the Registrar of Contractors’ public website on October 31, 2013. Such prior license record reflects that License No. C-5.275995-R of Custom is 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. When Ms. Park expressed her dissatisfaction with Custom’s construction work at her residence, Custom stopped work on the construction project and conditioned its return upon Ms. Park’s agreement to pay Custom additional money for corrective work. This Tribunal concludes that Custom violated the charged provisions of A.R.S. § 32-1154(A)(1)[6] and A.R.S. § 32-1154(A)(9).[7] 4. The Work Invoice utilized by Custom as the parties’ construction agreement failed to comply with the provisions of A.R.S. § 32-1158. Inspector Cason stated that the Work Invoice did not contain an estimated date of completion, did not contain the total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes, did not contain the dollar amount of any progress payment and the stage of construction at which the contractor would be entitled to collect the progress payment, did not inform Ms. Park that she had a right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A), did not contain the Registrar’s telephone number and website address, and did not contain the applicable time period set forth in A.R.S. § 32-1155(A) to file complaints with the Registrar. This Tribunal concludes that Custom violated the charged provision of A.R.S. § 32-1154(A)(13),[8] namely, A.R.S. § 32-1158(B)(4), (6), (7), (8), and (9).[9] 5. Custom failed to perform corrective work at Ms. Park’s residence in response to the Corrective Work Order. This Tribunal concludes that Custom violated the charged provision of A.R.S. § 32-1154(A)(23).[10] 6. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. C-5.275995-R of Custom shall be suspended until the Registrar of Contractors receives and accepts written proof of the following actions: (1) That Custom has, as restitution, paid the sum of $1,730.00 in certified funds to Ms. Park for her cost of having the concrete coating applied by Custom removed so that a new concrete coating could be applied; and (2) That Custom has corrected all of Custom’s form contracts and invoices to fully comply with the provisions of A.R.S. § 32- 1158. It is further recommended that if on or before the effective date of this Order, Custom fully accomplishes the above-described actions, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Custom pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Custom to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Custom’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Custom, 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 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, November 1, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit C-1 (8/27/12 Invoice). [2] See Exhibit No. C-2 (9/10/12 Letter). [3] See Exhibit No. C-7 (11/30/12 Email). [4] License No. KB-1.147086-D. [5] See Exhibit No. C-9 (10/18/12 Contract). [6] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other 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. [7] A.R.S. § 32-1154(A)(9) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract. [8] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [9] A.R.S. § 32-1158 provides, in pertinent part, as follows: than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 4. The estimated date of completion of all work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

[10] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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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