ALJDEC decisions subject to certification as final

2016A-4562-CHC-ROC · Registrar of Contractors · 2017-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gilbert and Helene Lustig,

COMPLAINANT,

v.

Sayco Flooring LLC,

License No: 274835

RESPONDENT.

No. 2016A-4562-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 14, 2017

APPEARANCES: Complainants Gilbert and Helene Lustig appeared on their own behalf. Robert Battey, Owner, appeared on behalf of Respondent Sayco Flooring LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Sayco Flooring LLC (Respondent) is the holder of License No. 274835 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 27, 2016, Gilbert and Helen Lustig (Complainants) signed a contract with Exclusive Restoration Inc. (Exclusive), holder of License No. 092841, for the renovation of their bathroom to make it ADA compliant.

On or about November 15, 2016, the Registrar received a complaint against Sayco Flooring LLC (Respondent) from Complainant alleging poor work with respect to the project. Respondent was a subcontractor of A All-Rite Flooring Coverings (All-Rite), holder of License No. 247623, who was a subcontractor of Exclusive.

At or around the same time, the Registrar received a complaint filed by Exclusive against All-Rite regarding the same issues.

The Registrar assigned the complaint to Investigator Ted Stodder. On December 8, 2016, Investigator Stodder conducted a jobsite inspection at which Complainants, Respondent, Exclusive, and All-Rite were present. Following the jobsite inspection, Investigator Stodder reviewed the issues with colleagues at the Registrar to formulate an approach towards the multiple complaints in this matter. After discussion, Investigator Stodder concluded that the best course of action would be to ask Exclusive to withdraw its complaint against All-Rite and allow Complainants’ complaint against Respondent proceed. Exclusive agreed and withdrew its complaint.

After a jobsite inspection, Investigator Stodder 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 December 30, 2016.

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

Shower floor must completely drain to the drain.

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 attempted to complete the corrective work on the floor of the shower. After the deadline in the directive expired, Investigator Stodder was notified that Respondent had made the attempted repair, but that the shower still did not drain completely to the drain.

On January 4, 2017, Investigator Stodder conducted a compliance inspection and found that the shower still did not drain completely to the drain and that there were still ups and downs on the tile floor of the shower.

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 Stodder testified that he did not complete a prehearing inspection because Complainants had someone else repair the flooring of the shower. Investigator Stodder also stated that if a contractor performs work over an existing surface, the contractor accepts the condition of the surface, and if the contractor does not believe the surface is appropriate, it should not perform the work or should obtain a waiver.

Gilbert Lustig testified that Complainants decided to renovate the bathroom because he has arthritis and uses a wheelchair. Mr. Lustig stated that they did not know that there was any problem with the flooring in the shower until the faucets were installed in November 2016. Mr. Lustig indicated there were several other issues with the shower that Complainants were willing to overlook in favor of fixing the floor of the shower so it was usable. Mr. Lustig testified that on December 29, 2016, Respondent cut out an area of the tile and reinstalled it, but the problems remained. Mr. Lustig acknowledged that on February 8, 2017, a different contractor hired by Exclusive repaired the shower floor and Complainants did not have to make any additional payments for that work to be completed.

Robert Battey, Respondent’s Owner, testified that Respondent did not have a contract with Complainants and that its only contract was with All-Rite. Mr. Battey indicated that he had no contact with Complainants and performed the work outlined in Respondent’s contract with All-Rite. Mr. Battey also indicated that toward the end of February 2017, he was told by All-Rite that if he wrote a check to All-Rite for the sum of $1,600.00, All-Rite would ensure the complaint was withdrawn and it would get a different contractor to correct the problem. Mr. Battey was uncertain if at the time of the hearing if the check had been cashed.

Administrative notice is taken of Respondent’s prior License record on March 29, 2017. Such prior License record reflects that Respondent’s License No. 274835 was first issued on September 18, 2011, and is currently suspended for lack of bond and lack of qualifying party. Such prior License record also reflects that there was one resolved/settled/withdrawn 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, while Respondent’s work was not in conformity with the Registrar’s standards at the time it was performed, it has since been corrected by Exclusive, the general contractor on the project for no additional charges to Complainants. As Exclusive had the ultimate responsibility on the project, there does not appear to be any remaining issues to be resolved in this forum. If the parties have any remaining financial disputes, those cannot be resolved at the Office of Administrative Hearings and may be addressed in a different forum.

Complainants failed to establish that Respondent acted in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3) and/or of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainants Gilbert and Helene Lustig’s complaint in Case No. 2016-4562 against Respondent Sayco Flooring LLC’s License No. 274835.

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, March 29, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors