ALJDEC decisions subject to certification as final

2016A-1782-ROC · Registrar of Contractors · 2016-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Despina Hardy,

COMPLAINANT,

v.

Property Management Contracting Services LLC,

License No: 305099

RESPONDENT.

No. 2016A-1782-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 23, 2016

APPEARANCES: Complainant Despina Hardy appeared on her own behalf. David Collinsworth, Owner and Qualifying Party, appeared on behalf of Respondent Property Management Contracting Services LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Property Management Contracting Services LLC (Respondent) is the holder of License No. 305099 issued by the Arizona Registrar of Contractors (Registrar) on May 5, 2016.

On or about January 20, 2016, Despina Hardy (Complainant) entered into a verbal agreement with Respondent for, among other things, tile flooring installation, drywall repair, and painting, at 510 East Concorda Drive, Tempe, Arizona.

On or about May 5, 2016, the Registrar received an Unlicensed Complaint Form alleging Respondent performed the work on the property without a contracting license. Because Respondent was issued a license on May 5, 2016, the Registrar treated the complaint as a workmanship complaint.

The Registrar assigned the complaint to Investigator Mike Crow. After a jobsite inspection, Investigator Crow 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 28, 2016.

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

Poor tile installation- uneven lips, inadequate preparation, inadequate thin set, spacer in tile cuts.

Upon inspection at this JSI I observed many places throughout the installation of the tile with extreme lippage, multiple tiles that are hollow sounding when tapped, uneven grout lines, grout lines that are not the same size, tile that has not adhered properly and begun to or already has come loose from subfloor.

Respondent should return and correct by appropriate means.

Damage to carpets- even after first drywall repair I told Dave- he continued to ignore and not protect.

Respondent should return and correct by appropriate means.

Use of my domestic vacuum for cleanup- general debris and mess- very little clean up.

Respondent should return and correct by appropriate means.

Messy paint work- gloss paint on wall to patch where it was matt[e] finish.

Respondent should return and correct by appropriate means.

Baseboards- multiple joints poor.

Respondent should return and correct by appropriate means.

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 replaced 13 tiles and performed other corrective work. After the deadline in the directive expired, Investigator Crow conducted a compliance inspection at which time he found that Respondent did not complete the written directive. Specifically, Investigator Crow found that Respondent attempted repairs to the tile, but there was still excessive lippage, spacers in tile, hollow tiles, and messy work not cleaned up; Respondent vacuumed bedroom and cleaned up paint spots, but Respondent did not clean up all the bedrooms; Respondent cleaned the vacuum; Respondent did not complete the messy and incomplete painting; and Respondent nailed some baseboards into place, but did not caulk and paint base or fill nail holes and did not install baseboards anywhere else in the house.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Crow testified that during the initial jobsite inspection, he observed numerous tiles with excessive lippage on each side, hollow tiles, unevenly sized grout lines, tiles out of square, and improperly cut tiles around corners.

Complainant testified that the major concern was the installation of the tile. Complainant stated that of the more than 700 square feet of tile installed in the house, Respondent replaced only 13 tiles. Complainant submitted photographs of the tiles taken September 3, 2016, after Respondent had performed the corrective work. The photographs included a particular intersection of four tiles that were all of noticeably different heights. Complainant also submitted a video of corrective work being performed by another contractor during which several tiles lifted off the subfloor with little to no effort and with very little adhesive on the bottom of the tiles. Complainant also testified that the particular tile noted by Investigator Crow during the jobsite inspection that wrapped around a corner was cut into two pieces had not been replaced. Complainant acknowledged that she had no recourse going forward as far as accessing the Registrar’s Residential Contractors’ Recovery Fund, but wanted to ensure that other members of the public were protected from Respondent.

David Collinsworth, Respondent’s Owner and Qualifying Party, testified that he knew Respondent was not licensed at the time he entered into the verbal contract, but that he had submitted the application, there is “quite a wait once you apply to get your license,” and Respondent was “just waiting on a piece of paper.” Mr. Collinsworth stated that Respondent checked every single tile and found only the 13 tiles that needed to be repaired. Mr. Collinsworth asserted that once the tiles were grouted, one would never notice 99 percent the problems cited. Mr. Collinsworth argued that none of the problems would have occurred if Complainant had not selected large tiles, a grid pattern, and the thinnest grout lines. Mr. Collinsworth also alleged that the tiles were cupped which resulted in the adhesive not covering the back of the tiles. Mr. Collinsworth also stated that he had seen much, much worse work done by other contractors.

Administrative notice is taken of Respondent’s prior License record on December 12, 2016. Such prior License record reflects that Respondent’s License No. 305099 was first issued on May 5, 2016, and has been suspended since October 23, 2016, due to lack of bond. Such prior License record also reflects that there was one open complaint against Respondent’s license.

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 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 (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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship 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 compete the 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).

It is of note that Respondent knowingly entered into a verbal contract prior to being issued a license by the Registrar. It is also concerning that Respondent believes the work performed was acceptable because Mr. Collinsworth had seen worse work by other contractors and that grout would eliminate the visual defects. The photographs in evidence demonstrate a serious deviation from the Registrar’s standards, and Respondent’s apparent indifference to such indicates Respondent cannot be regulated at this time.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 305099.

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(E).

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, December 12, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors