ALJDEC decisions subject to certification as final

2017A-1389-CHC-ROC · Registrar of Contractors · 2017-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna Rae Exe,

COMPLAINANT,

v.

Dust B Gone Tile Removal LLC ,

License No. CR-8.296848-D,

RESPONDENT.

No. 2017A-1389-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, 2017, at 1:00 p.m.

APPEARANCES: Donna Rae Exe (“Complainant”) appeared on her own behalf; Dust B Gone Tile Removal LLC (“Respondent”) appeared through Holly Fay Brown, its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 30, 2015, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR-8.296848-D for dual floor covering to Respondent.

On or about March 13, 2017, Complainant filed a complaint with the Registrar against Respondent alleging 32 specific items of allegedly poor workmanship in Respondent’s performance of its contract to install flooring in Complainant’s house at 24917 W. Morning Vista Ln., Wittmann, Arizona 85361.

The Registrar assigned the complaint to its Investigator, Russell Reed, for investigation. Investigator Reed performed a jobsite inspection and on April 5, 2017, issued a directive to Respondent to repair 20 items on Complainant’s complaint on or before 5:00 p.m. on April 24, 2017.

After Complainant informed Investigator Reed that Respondent had not performed corrective work to comply with the April 5, 2017 directive, the complaint was referred to the Registrar’s Legal Department. On April 28, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/officer Ms. Brown filed a timely written answer to the Citation, stating Respondent’s license should not be suspended because it had worked on Complainant’s house on 21 days between September 28, 2016, and March 3, 2017, and had agreed to make the repairs required by the April 4, 2017 directive. Ms. Brown explained that Respondent had not received the complaint or the directive in a timely manner and that Complainant had not responded to Ms. Brown’s efforts to reach a resolution.

An evidentiary hearing was held on July 6, 2017. Complainant testified. Ms. Brown testified on Respondent’s behalf. Investigator Reed also testified

Hearing Evidence

Investigator Reed testified consistently with the April 5, 2017 directive. Investigator Reed testified that Respondent’s representative did not appear at the April 4, 2017 jobsite inspection. Inspector Reed testified that he went over the extensive list of alleged workmanship deficiencies with Complainant and her daughter. Inspector Reed testified that in his opinion, the 20 items on the directive did not comply with the Registrar’s or industry workmanship standards.

Complainant acknowledged that she was not contesting any of the items that Investigator Reed had not required Respondent to correct.

Investigator Reed testified that he allowed Respondent 20 days, rather than the usual 15, to perform repairs. Investigator Reed testified that he called Complainant after the deadline in the directive had passed and she informed him that Respondent had not performed any repairs. He then referred the matter to the Legal Department.

Investigator Reed testified that he called Respondent on the day of the jobsite inspection or the next day. Investigator Brown testified that after Ms. Brown said that Respondent had not received the complaint or the letter scheduling the jobsite inspection, he obtained her email address and forwarded the complaint and April 5, 2017 directive to Respondent.

Ms. Brown testified that Respondent did not received the April 5, 2017 directive in a timely manner. Ms. Brown acknowledged that Respondent eventually received the directive, but stated that she did not write down the date.

Ms. Brown testified that Complainant told Respondent that she would not allow Respondent to correct anything unless it agreed to correct everything that required correction. Ms. Brown testified that she called Complainant and tried to schedule repairs, but that Complainant did not return her calls. Ms. Brown testified that she would not blame Complainant and acknowledged that Respondent needed to make repairs.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the website showed that Respondent’s license was placed on finite suspensions as a result of other complaints between April 8, 2016, and April 14, 2016, and between April 7, 2016, and April 10, 2016. It is not clear there the complaints that resulted in the concurrent suspensions were related. Between May 19, 2016, and June 24, 2016, Respondent’s license was administratively suspended for lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the 20 specific deficiencies noted in the April 5, 2017 directive, thereby providing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. Investigator Reed’s testimony established that Respondent received the April 5, 2017 directive shortly after it was issued. Respondent acknowledged that it did not comply with the directive. Respondent did not establish that it attempted to contact Complainant to schedule repairs during the time allowed by the directive. Therefore, Complainant established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. CR-8.296848-D of Respondent Dust B Gone Tile Removal LLC shall be suspended for a period of fourteen (14) calendar 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 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 five days from the date of that certification.

Done this day, July 12, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors