ALJDEC decisions subject to certification as final

2017A-3676-CHC-ROC · Registrar of Contractors · 2018-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Timothy Scott Gaffney,

COMPLAINANT,

v.

Webster Tile Installation Company,

License No: 299858

RESPONDENT.

No. 2017A-3676-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 18, 2017

APPEARANCES: Complainant Timothy Scott Gaffney appeared on his own behalf. James Webster appeared on behalf of Respondent Webster Tile Installation Company.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Webster Tile Installation Company (Respondent) is the holder of License No. 299858 issued by the Arizona Registrar of Contractors (Registrar).

Sometime in January 2017, Timothy Scott Gaffney (Complainant) signed a document purporting to be a contract with Respondent for the installation of shower pans with drain, shower floors, and shower walls. The contract was written on notebook paper with designations of B1 and B2 and showing totals for each room. Under the total for the second bathroom was an entry “+500.” There was no designation as to what work that $500.00 was for. Complainant paid the total due under the contract.

On or about July 19, 2017, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz 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 October 3, 2017.

If your license 299858 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship by reaching a financial settlement with Complainant.

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

Complaint Item 1: Contractor not completed tile work on patios or walkway.

Hollow sounding/loose tiles noted in the front walkway landing area, and, numerous hollow sounding/loose tiles in the rear covered patio area.

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 made no attempt to perform any corrective work. After the deadline in the directive expired, Investigator Cruz was notified no 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); A.R.S. § 32-1158(B), and thereby of A.R.S. § 32-1154(A)(12); and A.R.S. § 32-1154(A)(22).

Complainant testified that Respondent had previously performed work at his home installing tile on the front walkway and back patio, that he appreciated that work, and that he wanted to work with Respondent again. When Complainant decided to redo two bathrooms in his home, he contacted Respondent. Complainant testified that while discussing the project, he raised the loose and/or hollow tiles with Respondent. According to Complainant, Respondent agreed to replace the tiles for $500.00 and that is the source of the added line of $500.00 after the totals for the two bathrooms. Complainant reported that after the bathrooms had been completed, Mr. Webster kept saying he would be out to do the work, but it needed to be done before temperatures got too high, failed to show on an agreed upon date, put Complaint off repeatedly, and eventually stopped responding to Complainant.

Mr. Webster testified that the $500.00 entry on the contract was for an additional wall in the shower that Complainant was going to build and Respondent agreed to tile for half price. Mr. Webster said that he had shown Complainant where to build the shower wall and had calculated the cost based on the measurements he took. Mr. Webster provided no explanation for why he would do that portion of the bathroom for half price or why that line on the contract did not have any measurements as the listings for the bathrooms do. Mr. Webster stated he avoids doing repair work outside of the warranty timeframe because it opens him up to new claims through the Registrar. Mr. Webster conceded that his contract was not in compliance with the Registrar’s requirements.

Investigator Cruz testified that he observed numerous loose or hollow tiles on the front walkway and the back patio and that nothing had changed as of the prehearing inspection.

Administrative notice is taken of Respondent’s prior License record on January 7, 2018. Such prior License record reflects that Respondent’s License No. 299858 was first issued on July 8, 2015, and is current. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in discipline 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).

While Complainant and Respondent had differing versions of what the $500.00 entry on the contract referenced, taking the evidence together, Complainant’s account was more credible. Given the text of the contract and the text messages exchanged between the parties, it appears by a preponderance of the evidence that Respondent agreed to repair the loose and hollow tiles on the front walkway and the back patio for $500.00.

While the preponderance of the evidence established that Respondent failed to complete the project as contracted, the Citation issued in this matter did not allege abandonment of the project. Therefore, the Administrative Law Judge cannot find a violation of A.R.S. § 32-1154(A)(1).

As to the work that was performed by Respondent, there was no allegation that the work was not in conformity with the Registrar’s standards. Therefore, Complainant failed to establish 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 attempt to compete the corrective work following the Directive being issued. 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).

The evidence established that the contract at issue did not include the name of the contractor, the contractor’s business address, the contractor’s license number, the name and mailing address of the owner, the jobsite address, the date the parties entered into the contract, the estimated date of completion of all work to be performed under the contract, a description of the work to be performed under the contract, or an advisement that Complainant had the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154. Therefore, Complainant established that Respondent’s contract did not have all the required elements of a contract in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B).

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. 299858 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.

It is further recommended Respondent’s License No. 299858 be suspended based on its violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B) until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(B).

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, January 8, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors