ALJDEC decisions subject to certification as final

2013A-932-ROC · Registrar of Contractors · 2014-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2013, at 1:00 p.m. APPEARANCES: Lucy M. Beeler (hereinafter “Complainant” or “Ms. Beeler”) was represented by her attorney, Matthew D. Saxe, Esq. Lang, Baker & Klain, P.L.C. Modern Image Interiors Inc (hereinafter “Modern” or “Respondent”) was represented by its attorney, Laura Rogal, Esq. Jaburg & Wilk. 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 Modern is the holder of License No. K-8.272856-D issued by the Registrar of Contractors. This is a residential matter where Modern removed the existing floor tile in Ms. Beeler’s residence and installed approximately 1280 square feet of new floor tile. Ms. Beeler was dissatisfied with Modern’s workmanship and filed a formal Complaint against Modern with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Dennis Schnick (hereinafter “Inspector Schnick”), conducted an onsite inspection. Inspector Schnick issued a written Corrective Work Order on March 18, 2013, directing Modern to perform designated corrective work on Ms. Beeler’s residence. The Corrective Work Order provided, in pertinent part, as follows: Complaint 1) Significant number of chipped tiles in every room of house. • Respondent to correct by appropriate means.

Complaint 2) Contractor left no extra tile. • Investigator has no first-hand knowledge.

Testimony of Registrar Inspector Dennis Schnick Inspector Schnick testified that he performed an onsite inspection at Ms. Beeler’s residence on March 15, 2013, at 10:00 a.m. Inspector Schnick stated that Modern was not present for his onsite inspection. Inspector Schnick denied that he had informed Modern’s owner not to attend the onsite inspection. Inspector Schnick testified that Ms. Beeler had marked numerous floor tiles with blue tape. Inspector Schnick testified that he observed a significant number of floor tiles with chips in them. Inspector Schnick stated that he observed floor tiles with chips that were in corners and under toe-kicks. Inspector Schnick testified that he observed several cracked floor tiles in Ms. Beeler’s residence. Inspector Schnick testified that applicable workmanship standards require the contractor to properly correct all chipped and cracked floor tiles. Inspector Schnick stated that Modern failed to comply with the terms of the Corrective Work Order. Inspector Schnick testified that he did not believe that there had been a denial of access in this matter. Inspector Schnick’s testimony is found to be credible. Testimony of Lucy M. Beeler Ms. Beeler testified that she had paid Modern in full for the tile work in her residence. Ms. Beeler stated that Modern completed the tile work in the evening and that she did not observe the numerous chipped floor tiles until she cleaned the tile floor the following day. Ms. Beeler testified that she complained to Modern about the chipped floor tile. Ms. Beeler testified that Modern maintained that the chipping was a characteristic of the type of ceramic floor tile installed in Ms. Beeler’s residence. Ms. Beeler stated that Modern had not complied with the terms of the Corrective Work Order. Ms. Beeler testified that she had not denied Modern access to her residence. Ms. Beeler testified that she had allowed Priority One Inspections to perform an independent inspection of her tile floor on March 22, 2013. Ms. Beeler stated that there are 242 chipped floor tiles in her residence. Ms. Beeler testified that the floor tiles were chipped when Modern installed them in her residence. Ms. Beeler stated that she wants the chipped floor tiles in her residence removed and replaced. Ms. Beeler testified that Modern had promised to leave additional floor tile for possible repairs to her tile floor. Ms. Beeler stated that Modern failed to leave any floor tile. Ms. Beeler testified that Modern should provide her with additional floor tile for possible repairs to her tile floor. Testimony of Donald Jacobs Donald Jacobs (hereinafter “Mr. Jacobs”) testified that he owns Priority One Inspections. Mr. Jacobs stated that he performed an independent inspection of the floor tile in Ms. Beeler’s residence on March 22, 2013. Mr. Jacobs testified that overall the floor tile installation was very good. Mr. Jacobs testified that only twenty to twenty five floor tiles with chips could be seen from a standing position. Mr. Jacobs stated that the chips in the remaining floor tile could only be observed from a kneeling position. Mr. Jacobs testified that applicable industry standards only require correction for chips that can be observed from a standing position. Mr. Jacobs acknowledged that he had nothing in writing to support his position that industry standards only required correction of chipped floor tiles where the chips are observable from a standing position. Testimony of Nathan Michael Graham Nathan Michael Graham (hereinafter “Mr. Graham”) testified that he is the qualifying party and owner of Modern. Mr. Graham stated that he was not present for Inspector Schnick’s onsite inspection because Inspector Schnick advised him not to attend the onsite inspection. Mr. Graham testified that Complainant should have filed her complaint regarding the chipped tiles within ten days of the installation of the floor tile. Mr. Graham testified that the type of ceramic floor tile selected by Ms. Beeler has raised edges to simulate a wood grain pattern on the floor tile and that raised edges are prone to chipping. Mr. Graham stated that none of the floor tiles were chipped when Modern installed the floor tiles in Ms. Beeler’s residence. Mr. Graham asserted that the chipping in the floor tiles was caused by homeowner abuse. Mr. Graham testified that all of the extra tiles for the construction project were utilized in Modern’s attempts to satisfy Ms. Beeler before she filed the Complaint with the Registrar of Contractors. Mr. Graham stated that Ms. Beeler had denied Modern a reasonable opportunity to perform corrective work on her tile floor. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on January 8, 2014. Such prior license record reflects that License No. K-8.272856-D of Modern was suspended for lack of bond from September 16, 2013, through September 18, 2013, and that License No. K-8.272856-D of Modern was suspended for non-renewal from July 1, 2013, through September 18, 2013. 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. There are a significant number of chipped floor tiles in every room of Ms. Beeler’s residence, including corners and under toe-kicks which would normally receive very little use. The chipped floor tiles do not comply with applicable workmanship and industry standards. This Tribunal concludes that Modern violated the charged provision of A.R.S. § 32- 1154(A)(3),[1] namely, A.A.C. R4-9-108.[2] 4. Modern’s proposal/contract dated October 22, 2012, does not display Modern’s license number.[3] This Tribunal concludes that Modern violated the charged provision of A.R.S. § 32-1154(A)(13),[4] namely, A.R.S. § 32- 1124(B).[5] 5. Modern’s proposal/contract dated October 22, 2012, does not contain information that the property owner has a right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32- 1154(A) and does not contain the Registrar’s telephone number and website address. Modern’s proposal contract does not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32- 1155. This Tribunal concludes that Modern violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158.[6] 6. Modern failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that Modern violated the charged provision of A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order that License No. K-8.272856-D of Modern shall be suspended until the Registrar of Contractors receives and accepts written proof that Modern has fully complied with the terms of the written Corrective Work Order issued in this matter and that Modern has brought its business forms and contracts within full compliance with the provisions of A.R.S. § 32-1124(B) and A.R.S. § 32-1158. It is further recommended that if Modern fully accomplishes the above described corrective action and provides acceptable written proof that all of Modern’s business forms and contracts have been brought into full compliance with the provision of A.R.S. § 32-1124(B) and A.R.S. § 32- 1158, on or before the effective date of this Order, then the above provided License suspension 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 Modern 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 Modern 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 Modern’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Modern, 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, January 8, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license. violation of any rule adopted by the registrar. [2] 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.

[3] See Exhibit No. 1 (10/22/12 proposal/contract). [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. § 32-1124(B) provides, in pertinent part, as follows:

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.

[6] A.R.S. § 32-1158 provides, in pertinent part, as follows: 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. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

[7] 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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