ALJDEC decisions subject to certification as final

2016A-3076-ROC · Registrar of Contractors · 2017-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lewis R Holmes,

COMPLAINANT,

-v-

A Select Tile and Stone, LLC ,

License No: 263392,

RESPONDENT

No. 2016A-3076-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2017

APPEARANCES: Lewis R. Holmes on his own behalf; James A. Whitehill, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

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FINDINGS OF FACT

On October 28, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 2, 2016, at the Office of Administrative Hearings.

The matter was continued and the hearing was conducted on January 10, 2017.

Respondent A Select Tile and Stone, LLC (“A Select Tile”) holds license number 263392 issued by ROC. Dan Lutz is A Select Tile’s qualifying party.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

Through the Citation, ROC alleges that A Select Tile may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke A Select Tile’s license.

In July 2016, A Select Tile removed an existing marble tile floor and installed replacement tile for Complainant Lewis R. Holmes. The installation was completed on July 22, 2016.

On July 22, 2016, Mr. Holmes, his wife Haruko, and John Burley of Green Eagle Hard Surface Restoration LLC arrived at the house so Mr. Burley could inspect A Select Tile’s work for Mr. Holmes. Mr. Burley noted that there were three tiles with superficial scratches and that there was still some cleanup of residue required.

At the hearing, Mr. Burley testified as to his opinion that the floor was properly installed and was of “five star resort” quality.

On or about July 27, 2016, Mr. Holmes had Dr. Clean Restorative Floor Care come to the home to “clean and polish [an] etched area.” Respondent’s Exhibit 10. The record also includes an email to Mr. Holmes from Dr. Clean’s Bruce Myers dated August 13, 2016, stating that testing showed that Dr. Clean could not assist Mr. Holmes.

On August 7, 2016, Mr. Holmes filed with ROC a complaint against A Select Tile.

In an answer to the complaint dated August 25, 2016, A Select Tile informed ROC that on July 23, 2016 it had replaced two of the cracked tiles and polished the other to remove the scratch and cleaned any residue from the floor. Mr. Lutz also wrote that it was not until after Dr. Clean had been to the house that A Select Tile regained entry, which occurred on July 29. At that time, Mr. Lutz was shown additional scratches that had not been previously discussed with him.

In the August 25, 2016 answer, Mr. Lutz informed ROC that although A Select Tile did not believe it was responsible for scratches that were not brought to its attention before Dr. Clean entered the house, A Select Tile had agreed to replace these tiles out of fear that would not be paid the balance it was owed. Because A Select Tile could not find additional tile to replace any scratched tiles, A Select Tile arranged to have the scratches polished out. Mr. Holmes however informed Mr. Lutz that polishing was not acceptable and that the floor would need to be replaced and not further work was conducted by A Select Tile until after ROC issued a Directive.

ROC Investigator John Smith conducted a job-site inspection on September 9, 2016. Although Mr. Smith substantiated the allegation that there were scratches in the tile, he also noted that the cause of those scratches was not known, but was consistent with or similar to marks that could be made by a grout float.

On September 15, 2016, ROC issued to A Select Tile a Directive ordering it to remedy scratches, smear marks, and residue on the tile. The Directive required A Select Tile to provide ROC with written proof that it had completed the work ROC ordered it to undertake no later than 5:00 p.m. on September 30, 2016.

A Select Tile hired Arizona Stone Care, Inc. to make the corrections ROC ordered it to undertake. Arizona Stone completed its work on September 28, 2016.

Arizona Stone’s Zach Fredricksen testified that when it completed its work, Mr. Holmes did not identify any remaining problems, but Mr. Holmes also explained that his wife would need to inspect the work.

Mr. Fredricksen testified that it was dark when Arizona Stone completed its work, which could have made any smearing difficult to see. Mr. Fredricksen was of the opinion that any smearing that had not been remedied the first time could be fixed in four to five hours and he testified that Arizona Stone was willing to make those repairs.

On October 4, 2016, Mr. Smith conducted a compliance inspection at which time he determined that A Select Tile did not comply with the Directive because there were still smears and residue present.

In October 2016, Mr. Lutz made efforts to return to Mr. Holmes’s house to complete the required repairs, but Mr. Holmes informed A Select tile that he would not allow it to make repairs, but required new tile to be installed.

At the hearing, Mr. Holmes testified that he was not willing to allow A Select Tile back into the house to make any additional corrections. Mr. Holmes asserted that the tile was no longer new, but rather was now degraded, but he offered no substantial evidence in support of this assertion.

Mr. Burley and Mr. Lutz testified that any remaining smears or residue could be corrected or cleaned up in about a half a day.

Mr. Lutz testified that A Select Tile was willing and able to complete any additional work at the house. A Select Tile requested that it be given the opportunity to finish making any required repairs.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, 76 P.3d 892 (App. 2003).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced to show that A Select Tile is unscrupulous, unqualified, or financially irresponsible.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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22. 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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of up to five-hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Because the source of the scratches that Mr. Smith observed during his initial jobsite inspection is not known and Dr. Clean had worked on the floor prior to that inspection, the preponderance of the evidence does not show that A Select Tile caused these scratches.

A Select Tile accepts responsibility for the additional smearing or residue that needs to be cleaned. As such, the preponderance of the evidence shows that A Select Tile violated Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence does not show that A Select Tile violated Ariz. Rev. Stat. section 32-1154(A)(22). A Select Tile hired Arizona Stone to complete the required work and Mr. Holmes inspected that work and found it to be satisfactory. After A Select Tile was informed that additional smears or residue required cleaning, Mr. Lutz made attempts to finish the work, but Mr. Holmes would not allow A Select Tile to do so. Under these facts and circumstances, any failure on A Select Tile’s part was justified within the meaning of the statute.

The workmanship violation is relatively minor and involves only a failure to adequately clean the tile floor, with the unrebutted evidence showing that this can be completed in a few hours and that A Select Tile is ready and willing to do the clean-up work. Moreover, the evidence shows that this clean-up probably would have been completed if Mr. Holmes had allowed A Select Tile access.

RECOMMENDED ORDER

IT IS ORDERED that on or before the effective date of the final Order in this matter, A Select Tile and Stone LLC must clean the tiles at issue;

IT IS FURTHER ORDERED that Mr. Holmes must allow A Select Tile and Stone LLC access to do the required work and if he is unwilling to do so, Case No. 2016-3076 should be dismissed.

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 is forty days after the date of that certification.

Done this day, January 25, 2017.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors