ALJDEC decisions subject to certification as final

2017A-1090-CHC-ROC · Registrar of Contractors · 2017-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Paul E Condich,

COMPLAINANT,

v.

Those Guys Flooring LLC,

License No: 296845,

RESPONDENT.

No. 2017A-1090-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2017

APPEARANCES: Paul E. Condich (Complainant) appeared on his own behalf. No one appeared on behalf of Three Guys Flooring, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 283 West Cumaro Drive, Green Valley, Arizona 85614.

Respondent holds Arizona Contractor’s License 296845.

On February 27, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when installing flooring in his home. All told, the complaint contained 20 items, 12 of which alleged potential workmanship items and 8 of which were statements of alleged fact.

The Registrar assigned investigator Greg Johndrow to investigate the complaint. Johndrow testified that he arranged to perform an inspection on March 21, 2017, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Johndrow indicated that at the time of an inspection, he substantiated 6 of Complainant’s allegations including, but not limited to, the presence of a hump or raised floor in the transition from the dining room to the kitchen, unevenly cut flooring, lack of caulking between the bathtub and the flooring, vinyl planks that “pop-up” and vinyl planks that are uneven, causing visible gaps. Johndrow indicated he could not substantiate the remaining workmanship allegations either because Complainant had had another contractor modify the work in question or because it could not be determined whether Respondent was responsible for creating the condition at issue.

On March 29, 2017, Johndrow sent Respondent a Directive from the Registrar. The Directive stated in pertinent part 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 April 17, 2017.

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

“There is a noticeable hump in the transition from dining room to kitchen. Ray promised to sand it smooth.”

“Hector cut the vinyl by hand and around corners its [sic] obvious it was not done evenly or perfectly.”

“There is no caulk along tub in master bathroom”

“There are vinyl planks that pop up in my home at random[.]"

“Several comers the vinyl planks are cut unevenly[.]”

“Several places there are noticeable gaps where two ends of planks meet up.”

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

Respondent subsequently contacted Johndrow and told him that it had completed repairs and that Complainant was satisfied.

After the time period for compliance with the Directive, Complainant informed Johndrow that while Respondent had performed some repairs, he still was not satisfied.

On April 20, 2017, Johndrow performed a compliance inspection. He found that while Respondent had completed items 1, 3 and 4 of the directive, items 2, 5 and 6 were not completed. Johndrow noted that cuts in the vinyl flooring were still visibly uneven and corrective caulking had not been applied in all places, leaving gaps. He therefore forwarded the matter to the Registrar’s legal department for review.

On May 1, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Hearing was convened at the Office of Administrative Hearings on July 7, 2017.

Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. The Administrative Law Judge may multiple attempts to contact Respondent at its office telephone number, but could not leave a message because that number was forwarded to a cellphone with a full voicemail box. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence.

Johndrow testified consistently with the facts detailed above.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Undisputed credible testimony established Respondent performed substandard installation of flooring resulting in the presence of a hump or raised floor in the transition from the dining room to the kitchen, unevenly cut flooring, lack of caulking between the bathtub and the flooring, vinyl planks that “pop-up” and vinyl planks that are uneven causing visible gaps.. Thus, Complainant established Respondent’s work on his floor was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure to fix the visibly uneven cuts in the flooring.

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. License No: 296845 for a period of three (3) 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(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, July 14, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors