ALJDEC decisions subject to certification as final

2012A-61-ROC · Registrar of Contractors · 2012-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2012, at 1:00 p.m. APPEARANCES: Lin Hammond (hereinafter “Complainant”) appeared on her own behalf. Slide Lok Modular Storage Systems Inc., (hereinafter “Slide Lok” or “Respondent”) appeared through its authorized representative, Brian Scott Strayer. 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. Slide Lok is the holder of License No. C34R.234309-R issued by the Registrar of Contractors. 2. Slide Lok applied epoxy floor coating on Complainant’s garage floor on or about January 5, 2008. 3. Subsequently, Complainant and Slide Lok entered into a February 12, 2011 contract to apply epoxy floor coating to a small bare spot on Complainant’s garage floor where a cabinet had been removed and to repair some areas where the floor had been chipped. The dollar amount of the contract was $300.00, including tax. 4. Slide Lok applied the epoxy floor coating to the smaller area of Complainant’s garage floor on or about February 12, 2011. At that time, Slide Lok also performed some repairs to areas where the epoxy surface was chipped. 5. Complainant was dissatisfied with Slide Lok’s workmanship and filed a formal Complaint against Slide Lok with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Randy Cason (hereinafter “Inspector Cason”), conducted an onsite inspection. Inspector Cason issued a written Corrective Work Order on February 7, 2012, directing Slide Lok to perform designated corrective work on Complainant’s garage floor coating. 7. The Corrective Work Order provides, in pertinent part, as follows: License # 234309 issued to Slide Lok Modular Storage Systems Inc was suspended for Non-Renewal on 7/1/2011 and cannot do or sub- contract the following work until the suspension is lifted.

Complaint: The product faded and has chipped off in areas. At this inspection; This Inspector explained to the complainant that the ROC does not have jurisdiction over the original installation of the garage floor covering material (completed on 1/5/08; date on complaint form filed with the ROC – 1/4/12 – Lack of Jurisdiction; over 2 years).

No Action required by the Respondent.

Complaint: The contractor was paid to cover an area in the garage that was not cover[ed] during the original installation and recoat garage floor. The repairs that were completed are unsatisfactory. On 2/12/11 the Respondent covered a new area of the garage floor [where] the complainant had a cabinet and also filled in a few areas where the surface was chipped. The Respondent also recoated the whole garage floor with a clear coat finish product. Inspected the new area, color is close but is not exact; however is within standards. Inspected the clear coat; is not peeling; within standards. The areas where the Respondent had filled in the chips in the original product are not completed within standards. The Respondent did not smooth out the repair material or apply the finish coat properly. This was the only item that is not within standard and that is within jurisdiction.

The Respondent is to correct by appropriate means.

8. Inspector Cason testified that he conducted a pre-hearing inspection on July 30, 2012, at 10:00 a.m. Inspector Cason testified that the corrective work performed by Slide Lok is not satisfactory and fails to comply with applicable workmanship standards. Inspector Cason stated that Slide Lok performed the corrective action on Complainant’s garage floor while Slide Lok’s contractor’s license was under license suspension. Inspector Cason acknowledged that Slide Lok may have performed the corrective work before it received the Corrective Work Order.[1] 9. Inspector Cason testified that the finish around the repaired area fails to comply with applicable workmanship standards and requires further corrective action.[2] 10. There was no dispute that the February 12, 2011 contract failed to contain Slide Lok’s name as set forth on its contractor’s license, failed to provide Slide Lok’s contractor’s license number with the acronym “ROC,” and failed to inform Complainant that she had a right to file a written complaint with the Registrar of Contractors.[3] 11. Inspector Cason testified that the dollar amount of the parties’ February 12, 2011 contract was $300.00 including tax. Inspector Cason stated that the Registrar of Contractors has jurisdiction over the construction work performed pursuant to the terms of the parties’ February 12, 2011 contract because Slide Lok is a licensed contractor.[4] 12. Complainant stated that Slide Lok’s repair work on the epoxy coating on her garage floor made the appearance of her garage floor worse rather than better and that she was very dissatisfied with the appearance of the garage floor.[5] 13. Brian Strayer (hereinafter “Mr. Strayer”) testified that Slide Lok knew that it would be impossible for the new area of epoxy floor covering to match the rest of the garage floor perfectly. Mr. Strayer stated that Slide Lok gave written notification to Complainant in the parties’ February 12, 2011 contract that Slide Lok could not guarantee a color match. Mr. Strayer testified that the chips utilized in the epoxy floor covering are variable and that Slide Lok can not guarantee texture.[6] 14. Mr. Strayer testified that Inspector Cason called him before the Corrective Work Order was issued, and asked Slide Lok to repair a very small raised area in the garage floor. Mr. Strayer stated that Slide Lok promptly performed the requested corrective work by sanding the raised area and then applying a new top coating over the sanded area. Mr. Strayer argued that Slide Lok was not obligated to perform the corrective action because it was unconstitutional for the Registrar of Contractors to be requiring work that was not required in the parties’ construction agreement. Mr. Strayer stated that the only way Slide Lok could correct the sanded down area would be to recoat the entire floor which is beyond the scope of the parties’ contract and warranty.[7] 15. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on August 10, 2012. Such prior license record reflects that License No. C34R.234309-R of Slide Lok was suspended by the Registrar of Contractors for non- renewal on July 1, 2011, and that License No. C34R.234309-R of Slide Lok expired on July 1, 2012. 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 Registrar of Contractors has jurisdiction over the construction work performed pursuant to the terms of the parties’ February 12, 2011 contract because Slide Lok is a licensed contractor.[8] The areas in Complainant’s garage floor where Slide Lok filled in the chips were not completed within applicable workmanship and industry standards. Slide Lok did not smooth out the repair material or apply the finish coat properly. Slide Lok’s corrective work on Complainant’s garage floor fails to comply with applicable workmanship and industry standards. This tribunal concludes that Slide Lok violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[9] 4. Slide Lok failed to display its license number preceded by the acronym “ROC” on its February 12, 2011 Contract with Complainant. This Tribunal concludes that Slide Lok violated the charged provision of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B).[10] 5. Slide Lok’s February 12, 2011 Contract with Complainant failed to inform Complainant that she has a right to file a written complaint with the Registrar of Contractors for an alleged violation of A.R.S. § 32-1154(A). This Tribunal concludes that Slide Lok violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158.[11] 6. Slide Lok operated under the name Slide-Lok Garage Interiors and Home Storage, and the name Slide-Lok Phoenix, and the name Slide-Lok Corporation. The name on Slide Lok’s License No. C34R.234309-R is Slide Lok Modular Storage Systems Inc. This Tribunal concludes that Slide Lok violated the charged provision of A.R.S. § 32-1154(A)(15).[12] 7. Slide Lok failed to take appropriate corrective action after receiving a written directive from the Registrar of Contractors. This Tribunal concludes that Slide Lok violated the charged provision of A.R.S. § 32- 1154(A)(23).[13] RECOMMENDed order In view of the foregoing, it is recommended that License No. C34R.234309-R of Slide Lok shall be revoked on the effective date of this Order unless the Registrar of Contractors receives and accepts written proof that Slide Lok has caused a properly licensed contractor, of Complainant’s choice and at Slide Lok’s sole expense, to fully comply with the terms of the Corrective Work Order and that Slide Lok provides written proof acceptable to the Registrar of Contractors that Slide Lok has brought all of its business forms, including contracts and advertising, into full conformance with the applicable provisions of A.R.S. § 32-1124(B), A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(15). It is further recommended that if Slide Lok causes a properly licensed contractor, of Complainant’s choice and at Slide Lok’s sole expense, to fully comply with the terms of the Corrective Work Order and provides written proof acceptable to the Registrar of Contractors that Slide Lok has brought all of its business forms, including contracts and advertising, into full conformance with the applicable provisions of A.R.S. § 32-1124(B), A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(15), on or before the effective date of this Order, then the above provided License revocation shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Slide Lok pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Slide Lok 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 Slide Lok’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Slide Lok, 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, August 13, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] H.R. at 30:46-51:45. [2] 7/30/12 Hearing Record (hereinafter “H.R.”) at 21:40-23:10. [3] See Exhibit No. C-6 (2/12/11 Contract). [4] H.R. at 27:50-28:33. [5] H.R. at 52:30-1:11:53. [6] H.R. at 1:13:30-1:16:38. [7] H.R. at 1:16:50-1:21:57. [8] H.R. at 27:50-28:33. [9] A.A.C. R4-9-108. Workmanship Standards 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.

[10] A.R.S. § 32-1124. Issuance and display of license; B. Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public. [11] A.R.S. § 32-1158. 32-1158(A) From and after December 31, 1992 until December 31, 2007, any contract in an amount of more than one thousand dollars and less than one hundred fifty 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: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the 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. B. From and after December 31, 2007, any contract in an amount of more 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: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the 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.

[12] A.R.S. § 32-1154(A)(15) Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license. [13] A.R.S. § 32-1154(A)(23) 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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