ALJDEC decisions subject to certification as final

2017A-3619-CHC-ROC · Registrar of Contractors · 2017-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly N Wills

COMPLAINANT

v

A-1 Planet Recycling Inc. DBA: Planet Flooring and Supplies

License No. 276867

RESPONDENT

No. 2017A-3619-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2017

APPEARANCES: Complainant Kelly N. Wills appeared on her own behalf. Jeffrey Moen, Qualifying Party and General Manager, appeared on behalf of Respondent A-1 Planet Recycling Inc. doing business as Planet Flooring and Supplies.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

A-1 Planet Recycling Inc. doing business as Planet Flooring and Supplies (Respondent) is the holder of License No. 276867 issued by the Arizona Registrar of Contractors (Registrar).

In January 2017, Kelly N. Willis (Complainant) entered into a verbal contract with Respondent for the installation of vinyl plank flooring and tile flooring throughout her home.

On or about July 17, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Ted Stodder. 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 August 31, 2017.

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

1. An appropriate underlayment must be installed under the vinyl plank flooring.

2. Vinyl plank flooring must be installed in a professional workmanlike manner.

3. Some kitchen area tiles have excessive lippage. Lippage cannot exceed 1/16t[h]”.

4. Some tile on the stair risers are not solidly set. Reset tile so they are firmly attached.

5. Some tile in the stair risers are missing grout.

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 performed some of the corrective work. After the deadline in the directive expired, Investigator Stodder was notified that not all of the corrective work had been performed.

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).

Prior to the hearing, Investigator Stodder retired. Investigator Randy Cason appeared at the hearing and testified as to the Registrar’s involvement in this matter. Investigator Cason stated that he performed a prehearing inspection on October 27, 2017. At that time, Investigator Cason observed that Respondent had corrected item three included in the directive to comply with the Registrar’s workmanship standards. Investigator Cason noted that Respondent had attempted to correct items four and five, but the completed work did not comply with the Registrar’s workmanship standards. Investigator Cason indicated that no attempt had been done to complete items one and two. Investigator Cason stated that the Registrar does not involve itself in financial disputes between parties.

At hearing, the parties agreed as to the relevant facts underlying this matter:

They did not have a written contract outlining the scope of work and/or a payment schedule.

The initial vinyl plank and tile flooring installation was not in compliance with the Registrar’s workmanship standards.

Respondent attempted repairs of the tile flooring following the issuance of the written directive.

After completing the attempted repairs of the tile flooring, Respondent demanded payment for the tile flooring portion of the project before it would complete the directed repairs to the vinyl plank flooring.

Complainant would not pay for the tile flooring portion of the project.

Respondent did not attempt to perform any repairs to the vinyl plank flooring because Complainant would not pay for the tile flooring.

Administrative notice is taken of Respondent’s prior License record on November 7, 2017. Such prior License record reflects that Respondent’s License No. 276867 was first issued on February 23, 2012, and is current. Such prior License record also reflects that there were no other complaints 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 Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not compete the corrective work following the Directive being issued. While Respondent asserted that Complainant’s failure to pay for the tile flooring justified its failure to complete the corrective work included in the Directive, failure to receive payment does not excuse a failure to comply with a written directive issued by the Registrar. As Investigator Cason testified, the Registrar does not involve itself in financial disputes between parties. As such, a financial dispute does not excuse Respondent’s failure to comply with the Directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 276867 for a period of three 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, November 7, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors