ALJDEC decisions subject to certification as final
2017A-3447-CHC-ROC · Registrar of Contractors · 2017-11-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Laurie White,
COMPLAINANT,
v.
1st Choice Surfaces LLC ,
License No: 242955
RESPONDENT.
No. 2017A-3447-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 6, 2017
APPEARANCES: Timothy M. Collier, Esq. appeared on behalf of Complainant Laurie White. Brian A. Hatch, Esq. appeared on behalf of Respondent 1st Choice Surfaces, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On September 18, 2017, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 6, 2017, at the Office of Administrative Hearings.
Respondent 1st Choice Surfaces, LLC (“1st Choice”) holds license number 242955 issued by the Registrar.
James Dimond (“Jim Dimond”) is 1st Choice’s qualifying party.
During the months of September and December 2016, Laurie White and 1st Choice entered into a home remodeling contract wherein 1st Choice would install tile floors in Mrs. White’s home located at 9520 North 7th Street, #2, Phoenix, AZ 85020.
1st Choice was not licensed to install tile.
1st Choice began work on Ms. White’s home in October of 2016.
In or around December 2016, 1st Choice stopped work on Ms. White’s home.
On or about July 6, 2017, Mrs. White filed a Complaint with the Registrar alleging poor work on the part of 1st Choice.
On or about August 1, 2017, Registrar Investigator Jack Grimm conducted a jobsite inspection.
On August 2, 2017, Investigator Grimm issued a Directive. The Directive provides in relevant 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). You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 21, 2017. You are hereby directed to remedy the following violations by the appropriate means:
1. Cracked tiles.
Repair cracked tiles.
2. Hollow tiles.
Correct hollow sounding tiles. (only observed about four (4) tiles).
3. Unlevel tiles, which also caused large gaps between the tiles and baseboards in some places.
Correct tile with lippage greater than 1/32 inch. No issues with baseboard.
4. Misapplied grout to were certain "remains" appear on the face of the tile.
Clean areas of minor grout residue on tile edges. (Roughness felt on tile is the characteristic of this tile).
5. Damage to newly renovated bathroom, where grout was left on Mrs. White's new shower.
Clean residue grout on hall shower tiles.
6. The bathroom sink now needs to be replaced due to certain products being poured down the drain by the laborers.
Clean what appears to be residue grout in hall sink basin.
7. Landscape damage.
Clean residue mess at tree base and block wall at side of house.
11. Mr. Dimond nor any representative from 1st Choice contacted Mrs. White during the time period for compliance under the Directive.
12. On August 23, 2017, the Registrar issued a Citation against 1st Choice alleging that it violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(22).
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. Ms. White testified that 1st Choice performed substandard work in the construction of her home.
15. Mr. Dimond testified that before the Directive was issued, he offered to pay Ms. White $13,000 so that she could make repairs to her home. Mr. Dimond testified that Ms. White refused to take the money.
16. Mr. Dimond testified that he did not attempt to contact Ms. White after the Directive was issued because both sides had attorneys involved in the matter. Mr. Dimond testified he offered Ms. White a second settlement to pay for the corrective work after the Directive was issued. However, Mr. Dimond could not recall whether the offer was made during the timeframe for compliance under the Directive. Furthermore, Mr. Dimond offered no written evidence of a second settlement offer.
17. Mr. Dimond also testified that the construction deficiencies were caused because Ms. White told Respondent to install the incorrect tile. Mr. Dimond testified that he did not inform Respondent that she might experience defects by installing the incorrect tile, because Mr. Dimond did not know that installing the incorrect tile would cause problems.
18. Ms. White testified that 1st Choice did not contact her after the Directive was issued. Ms. White testified that she did not receive a settlement offer from 1st Choice after the Directive was issued.
19. 1st Choice offered no testimony or written evidence to establish that it offered to pay for the corrective work required under the Directive, during the time frame for compliance under the Directive.
20. I find Ms. White’s testimony to be credible.
21. Both parties offered testimony regarding the issue of whether Respondent performed construction work outside the scope of his license when he installed the tile. In this matter, the Register issued a warning letter to Respondent regarding the performance of construction work outside the scope of his license. However, the Registrar did not allege in its Citation that Respondent violated 32-1154 (A)(16). The issues for hearing are the charges issued in the Citation and Complaint. Therefore, the issue of performing work outside the scope of the license is not before the Administrative Law Judge and the Administrative Law Judge will not make any findings of fact regarding the issue.
22. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on November 27, 2017, there is only one open complaint against 1st Choice’s license. The Registrar has never before taken disciplinary action against 1st Choice’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.
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 violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
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 preponderance of the evidence shows that the issues found by Investigator Grimm constituted workmanship issues with the remodeling of Ms. White’s home. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend 1st Choice Surfaces, LLC’s License No. 242955 for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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.
Done this day, November 6, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors