ALJDEC decisions subject to certification as final

2016A-1440-ROC · Registrar of Contractors · 2016-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Freddy J Kirkegaard,

COMPLAINANT,

v.

Artistic Floors and Construction LLC,

License No: 235402

RESPONDENT.

No. 2016A-1440-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 4, 2016

APPEARANCES: Complainant Freddy J Kirkegaard appeared on his own behalf. Scott Welty, Owner, appeared on behalf of Respondent Artistic Floors and Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Respondent Artistic Floors and Construction LLC (Respondent) is the holder of License No. 235402 issued by the Arizona Registrar of Contractors (Registrar).

Complainant Freddy J Kirkegaard entered his information into a website to find a contractor able to install flooring at his home. Mr. Kirkegaard had enrolled Respondent through the website to receive referrals. Respondent was charged $58.00 for each valid lead it received through the website. Respondent was given Complainant’s information through the website. Mr. Welty contacted Mr. Kirkegaard regarding the project.

Complainant maintained that when Mr. Welty contacted him, Mr. Welty quoted Complainant $1,250.00 for the project. When Complainant agreed to work with Respondent, Mr. Welty stated he would send his guys on Monday to perform the work. Monday morning, workers arrived and installed the flooring. Complainant was not given a copy of a written contract to sign.

After the initial installation, Complainant discovered numerous problems and contacted Mr. Welty about the issues. After Complainant spoke to Mr. Welty, the workers would come back out to the home to attempt repairs. This occurred four to five times after the installation.

On or about May 2, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work on the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 20th, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Item 1- This laminate wood floor was installed on such a poorly levelled floor that the entire installation is to be removed and reinstalled after the substrate is corrected.

Additionally, the living room floor was started in a manner that was not square and the new floor shall be started in a manner consistent with the laminate flooring industry.

Also due to the floors being so out of square, the transition strips are crooked and shall also be corrected in accordance with industry standards.

Any laminate that is not reusable, shall be replaced at the respondent’s expense.

Item 2- The respondent verbally agreed to install the complainant’s flooring for $1200. This is over the $1000 threshold and requires a written contract that has the required provisions pursuant to ARS 32-1158.B. Receipts for monies paid were not provided as required by ARS 32-1158.C

The respondent is to provide the investigator compliant paperwork within the time frame mandated on this directive.

Item 3- On or about June 15, 2016, it appears that the Workers Compensation policy held by the respondent lapsed.

PRIOR TO ANY WORKERS PERFORMING CORRECTIONS, the respondent is to supply the ROC licensing department a copy of the respondents valid Workers Compensation policy and provide a copy to the investigator.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make any attempts to repair the flooring on the project.

On June 29, 2016, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2), A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12) via A.R.S. § 32-1158(B); and A.R.S. § 32-1154(A)(22).

A hearing was held on November 4, 2016. Investigator Dimond testified as to the Registrar’s standards, the jobsite inspection, and the written directive. Complainant presented his own testimony. Mr. Welty testified on behalf of Respondent.

Investigator Dimond testified the flooring was not installed squarely and had a “trapezoidal” look, which led to the transition strips being “out of whack.” Investigator Dimond also noted that the flooring was extremely wavy and was like a “roller coaster” in the home. Investigator Dimond testified that the only part of the written directive Respondent had complied with was the requirement to obtain a valid workers compensation policy.

Carol Kirkegaard testified that she and Complainant only dealt with Mr. Welty. Ms. Kirkegaard stated that when they had problems, they contacted Mr. Welty and he would send someone out to address it until eventually Mr. Welty stopped responding to their calls.

Mr. Welty testified that he did not agree to complete the project. Mr. Welty stated that he referred the project to someone he knows who works in that area, Robert Miller. Mr. Welty indicated that because he was going to be charged for the referral, he forwarded the referral. Mr. Welty acknowledged he had been able to be refunded for a referral he received that was not valid in the past. Mr. Welty was unable to explain how Respondent had gotten a referral from the website when he did not indicate Respondent worked in that area.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 25, 2016. Such prior License record reflects that Respondent’s License No. 235402 was first issued on August 9, 2007, and was current. The record also reflects that there was one open complaint pending against the license and two prior complaints that had been resolved, settled, or withdrawn.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation 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 (1952). “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).

While Mr. Welty asserted that he did not accept the project, but referred the matter to Mr. Miller after speaking to Complainant, his explanation is not credible. If it was Mr. Welty’s intention to refer the project to someone who performs work in the area, he could have given Mr. Miller Complainant’s information without ever speaking to Complainant. Mr. Welty also could have obtained a refund of the referral fee because Respondent did not indicate it would perform work in the area of Complainant’s project. Further, Mr. Welty took phone calls and addressed concerns of Complainant for some time before cutting off contact. In totality, Mr. Welty’s actions indicate Respondent was the entity performing the work on the project.

No evidence was presented to establish that Respondent disregarded any plans, specifications, or building codes in installing the flooring. Therefore, Complainant failed to establish that Respondent violation A.R.S. § 32-1154(A)(2).

The evidence of record established that Complainant was not given a written contract regarding the project. Therefore, Complainant established a violation of A.R.S. § 32-1154(A)(12) via A.R.S. § 32-1158(B).

The evidence established that the flooring was not installed properly, was not square, was extremely wavy, and had transition strips that were not square. Therefore, Complainant established Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to perform any corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 235402 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, November 25, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors