ALJDEC decisions subject to certification as final

2013A-4211-ROC · Registrar of Contractors · 2014-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2014 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Seth Hargraves. Respondent Behrend Floors and Interiors LLC appeared through James Behrend, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 8.264886-D to Behrend Floors and Interiors LLC (“Respondent”). On or about September 22, 2011, Joyce Lee and Vincent Burke (“Homeowners”) entered into a contract with Respondent for the installation of new tile in their home. The only evidence of a contract was an estimate that included the caption of Behrend Floors and Interiors LLC and its address. The estimate did not include Respondent’s License Number, an estimated completion date, details regarding the manner of progress payments to be made, or a notification that Homeowners had a right to file a complaint with the Registrar. Following the installation, Homeowners began noticing grout voids in the areas where the new tile was installed. Over time, numerous voids appeared where it seemed the grout was disintegrating. On or about March 22, 2013, Homeowners filed a Complaint with the Registrar regarding grout issues. The Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection. On May 6, 2013, Inspector Fleetham issued a Corrective Work Order (“CWO”) finding that there were dozens of grout voids and Respondent was to correct the voids by appropriate means. Respondent performed the work directed in the CWO by removing and replacing approximately 75 to 80 percent of the grout. After Homeowners requested a hearing, the Registrar issued a Citation and Notice of Hearing against Respondent charging possible violations 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(B); and A.R.S. § 32-1154(A)(23). At a pre-hearing inspection, Inspector Phil Coscia[1] determined that while Respondent had attempted to repair the grout, the voids were recurring after the repair work had been done. Mr. Behrend testified that he believed there were issues with the grout product used as the same problem occurred following the corrective work that was completed. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On January 27, 2014, such prior License record reflects that Respondent’s license was current with two complaints pending against the license. CONCLUSIONS OF LAW The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). A.R.S. §§ 32-1151 to 32-1169. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837, 838 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(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). The undisputed evidence at hearing established that the tile installation resulted in numerous grout voids. Therefore, Complainant established that Respondent’s work was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[2] The undisputed evidence at hearing established that while Respondent attempted to comply with the CWO, the repair work did not resolve the issue raised in the complaint. Therefore, Complainant established that Respondent failed to take appropriate corrective action within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23).[3] The undisputed evidence at hearing established that Respondent’s contract failed to include Respondent’s license number issued by the Registrar, the estimated date of completion, the dollar amount of any progress payments to be made, or an advisement of Homeowners’ right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent’s contract failed to include the minimum elements of a contract in violation of A.R.S. § 32-1154(A)(13),[4] namely A.R.S. § 32-1158(B).[5] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Behrend Floors and Interiors, LLC’s License No. K-8.264886-D for a period of two days. It is further recommended that Respondent pay $250.00 as a civil penalty to the Registrar pursuant to A.R.S. § 32-1154(D). In the event of 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 that certification. Done this day, January 27, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Inspector Fleetham left employment with the Registrar and the matter was reassigned to Inspector Coscia. [2] 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.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [4] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [5] A.R.S. § 32-1158(B) requires that:

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. . . . . 4. The estimated date of completion of all work to be performed under the contract. . . . . 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.

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