ALJDEC decisions subject to certification as final

2016A-2249-ROC · Registrar of Contractors · 2016-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kae Connell,

COMPLAINANT,

v.

Southwest Coating Solutions LLC,

License No: 234619

RESPONDENT.

No. 2016A-2249-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Thursday, December 1, 2016 at 8:30 am

APPEARANCES: Kae Connell (“Complainant”) and Mike Crow (“Investigator Crow” for Registrar of Contractors “Registrar”).

NON-APPEARANCE: Southwest Coating Solutions LLC (“Respondent”), failed to appear.

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22) “Failure to take appropriate corrective action”. Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. The Arizona Registrar of Contractors (“Registrar” or “ROC”) issued License No. CR-5-234619-D to Respondent, Southwest Coating Solutions LLC. Respondent’s address of record is 1829 S Home Ste 3, Mesa, AZ 85204.

2. Complainant, Kae Connell, is a residential homeowner. On or about June 27, 2016, a complaint was filed with the Registrar of Contractors (“Registrar”). Complainant stated she entered into two (2) separate contracts with Respondent. The first contract entered into on February 15, 2016 was to seal pavers in the backyard for a total amount of $850.00. The work commenced on February 16, 2016, and ended February 19, 2016. The second Contract entered into on March 16, 2016 was for trowel texture for a total amount of $2,200.00. The work started on April 16, 2016, and ended April 20, 2016.

3. Complainant alleges she hired Respondent for services under the first contract and was satisfied with the work performed and contracted with Respondent for additional work. She stated she met with Lisa Breese on March 16, 2016, to select a color for her patio and reviewed the color board provided by Respondent. “On April 16, 2016, they started the work. During the process, they kept putting on layers but it always was a plain light beige. I kept saying that it didn’t look like the board because it was only one color. Lisa said the sealer would bring it out.” . . . Complainant alleges that the end result did not look like the color board she selected and Respondent offered to grind it down and add brown but that this would be a solid color and not what she selected. Complainant also alleges that the 3 inches from the bottom of the house do not match the floor, she is experiencing issues with water spots on the pavers, and that the patio is nothing like the color board she selected.

4. Complainant provided copies of both contracts and canceled checks made payable to Respondent. Respondent’s Invoice No 1854Z dated March 17, 2016, for $2,200.00 was paid in two installments on March 16, 2016, check no. 4056 in the amount of $1,100.00, and check no 4077 in the amount of $1,100.00. Invoice NO. 1854Z set forth the scope of work to be performed at 1669 East Rock Creek Circle, Chandler, Arizona, as follows:

--grind to prep

--patch and fill minor holes and cracks

--apply a scratch coat with integrally colored material (C/S desert tan)

--apply troweled texture with integrally colored material (C/S desert tan)

--highlight with golden amber

--apply 2 topcoats of a high solid sealer

5. On June 30, 2016, the Registrar forwarded a copy of the Complaint to Respondent at the address of record: 1829 S Home Ste 3, Mesa, AZ 85204.

6. Investigator Crow sent a letter to both Complainant and Respondent notifying them of a scheduled jobsite inspection to take place on July 18, 2016, at 10:00am.

7. A jobsite inspection commenced on July 18, 2016, at 10:00am by Investigator Crow. Both Complainant and Respondent were present. Investigator Crow substantiated the following from the Complainant’s Complaint:

Complaint 1: Complainant set forth a detailed explanation of what she was seeking in work product and what she received as it pertains to the color board selection.

Investigator’s Observations: . . . “I found that the C had a contract for a patio that was to have multiple colors marbled together but that the patio coating that I observed did not fit the description that was on the contract. (See JSI photos 2-7 and 13)”. Investigator Crow took several photographs at this jobsite inspection. Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint 2: The 3 inches on the bottom of my house doesn't match the floor.

Investigator’s Observations: At this JSI I observed that the portion of the foundation below the stucco and and above the patio did not match the patio coating. (See photo 3). Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Investigator Crow also indicatd in his notes, “At this JSI the C informed me that she had met with the R at a meeting prior to work beginning and was shown a board (which she took picures of and are included in the JSI photos as P13) that showed a marbled effect for the final product.”

8. On August 15, 2016, Investigator Crow issued a Directive to Respondent to make the following corrections no later than August 31, 2016:

Complaint 1: As it pertains to the color board, that Respondent shall correct by appropriate means.

Complaint 2: The 3 inches on the bottom of my house doesn't match the floor. Respondent shall correct by the appropriate means.

9. On September 8, 2016, Investigator Crow sent a warning letter to Respondent advising it of a possible violation of A.R.S. § 32-1158(B), missing elements of a Contract.

10. A copy of the Color Chart was uploaded to the file on September 8, 2016, noting Complainant’s selected board color of Desert Tan with highlights of Golden Amber.

11. A citation was issued by the Registrar on September 9, 2016, for two (2) possible violations, namely, Charge 1: Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), and Charge 2: A.R.S. 32-1154(A)(22) “Failure to take appropriate corrective action”.

12. On September 26, 2016, Respondent entered its’ Answer to the Citation asserting they have submitted 7 sample boards to Complainant on 3 separate occasions and attempted to deliver an 8th but Complainant has made herself unavailable. Respondents detailed dates of attempts to provide Complainant with sample boards all of which were rejected. Specifically, that, “Immediatley [sic] following the walk thru with the investigator, we asked Ms. Connell to select colors for the sample board for her approval. Ms. Connell selected 4 different colors. We made three seperate [sic] sample boards from the colors she selected. Several attempts were made to deliver the boards, but we did not have contact with Ms. Connell until the end of the month. On September 1st, those 3 boards were [sic] delivered to Ms. Connell. Although she had selected the colors, she was unhappy with her color choice. We stated we would make 2 more boards with different colors that she thought she would like better. On Spetember [sic] 7th, Ms. Connell was shown those boards, and she did not like them at all. She was asked again to select colors she wanted. She stated she didnt know anymore what she wanted, "that she would know it when she saw it".”

13. Respondent asserted they offered alternatives to repair the patio floor, specifically, install a quartz floor or epoxy flake floor, both of which were rejected by Complainant. They also stated that they agreed to repaint the 3 inch stucco to match the color of the house, and that the issue has been the color and not texture of the work performed on the patio.

14. On October 3, 2016, the Registrar issued a Notice of Hearing setting a hearing on November 23, 2016, at 8:00am before the Office of Administrative Hearings. The Registrar mailed copies of the Notice of Hearing to Respondent at the address of record.

15. The Notice of Hearing informed the parties that “failure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

16. An email correspondence was received on October 4, 2016, from Complainant in reply to Respondent’s answer which did not refute that Respondent submitted an additional 7 board samples but reasserted that they did not compare to the initial board colors that were agreed to when the contract for the trowel texture was executed.

17. On November 1, 2016, Respondent requested a continuance. On November 7, 2016, Judge Suzanne Marwil granted the request for a continuance and sent out an Order Granting Continuance with Notice of Hearing rescheduled to December 1, 2016, at 8:30am. A copy of the Order was sent to Respondent at their address of record, as well as a copy to the Complainant.

Hearing Evidence

18. A hearing was held on Thursday, December 1, 2016, at 8:30am.

19, Respondent did not request to appear telephonically and did not request that the hearing be continued.

20. At the time set for this hearing, Complainant (homeowner) appeared. Respondent did not appear. The Administrative Law Judge delayed the start of the scheduled hearing for approximately twenty (20) minutes to allow time for appearance by or on behalf of the Respondent. When Respondent continued in their nonappearance after the expiration of a twenty minute grace period, the Administrative Law Judge convened the hearing.

21. Complainant provided testimony that she contracted with Respondent for a specific patio color and the color she agreed to was based on color boards provided by Respondent on March 17, 2016. On April 20, 2016, the agreed color was not what she received.

22. Inspector Crow testified in narrative format that he conducted a jobsite inspection and uploaded photographs and inspection notes from his findings of July 18, 2016 jobsite inspection. He further testified that of the 5 items listed on the complaint, he substantiated 2 items as it pertains to the color variation from the contract to the actual finished patio, and the 3 inch unmatched color from the floor. He stated the water residue appeared only where hard water hit and that he “did observe that everywhere where hose water had been applied that there was residue left over” .but did not include in his directive.

23. He stated that he received a telephone call from Respondent on September 7, 2016, asking for additional direction on the directive, and stating that Complainant is undecided on color, or not allowing them to do the work.

24. Complainant restated that they have not been able to produce the initial color board of a marble color that she agreed to under the contract, and that she paid the full amount of the contract for a total of $2,200.00 for the patio trowel texture for a color of which she did not receive.

CONCLUSIONS OF LAW

1. In this proceeding, Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent is subject to discipline for violations of A.R.S. § 32-1154(A)(3) and (A)(22). A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

2. The Administrative Law Judge concludes that Complainant has met her burden as it pertains to the color selection of the desert tan with highlights of golden amber instead of the light beige she received and the back patio of the home that meets the foundation where concrete color is not the same (3” from the floor of the patio).

3. A contractor is subject to discipline under Rule 4-9-108, for “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3). The evidence of record established that Respondent entered into a contract with Complainant to trowel texture the patio, and that Respondent failed to perform such work to industry standards. Therefore, the Administrative Law Judge concludes that Respondent is in violation of A.R.S. § 32-1154(A)(3).

4. Under A.R.S. § 32-1154(A)(22), a contractor is subject to discipline for “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.” In this case, the Directive was issued on August 15, 2016, with a completion date of August 31, 2016. Based on the record and Respondent’s answer to the Citation, attempts to deliver color samples were made but not provide to Complainant until September 1, 2016, which is one day after the corrective action was required to be complete. It is unclear what happened to the color board sample that was selected by Complainant on March 17, 2016, when Complainant initially contracted with Respondent. Therefore, the Administrative Law Judge finds merit in that Respondent should be subject to discipline for Charge 2 under the Citation of August 15, 2016.

5. Based on the foregoing, it is appropriate for the Registrar to impose discipline against Respondent’s license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation issued in this matter against Respondent, Southwest Coating Solutions LLC, License No. CR-5-234619-D shall be suspended for one (1) day.

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 5 days from the date of the certification

Done this day, December 8, 2016.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors