ALJDEC decisions subject to certification as final
2017A-4866-CHC-ROC · Registrar of Contractors · 2018-03-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert and Jean Gilson,
COMPLAINANT,
v.
Dust B Gone Tile Removal LLC ,
License No: 296848
RESPONDENT.
No. 2017A-4866-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 14, 2018
APPEARANCES: Complainants Robert and Jean Gilson appeared on behalf of themselves. Holly Brown appeared on behalf of Respondent Dust B Gone Tile Removal, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On December 22, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on February 14, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.
Dust B Gone Tile Removal, LLC, (hereinafter “Dust B Gone”), holds license number 296848 issued by the Registrar.
The Notice of Hearing shows that the hearing was set to consider the charges made in the citation and complaint.
Through the citation, the Registrar alleges that Dust B Gone may have violated A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A) (22). The citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Dust B Gone’s license.
On or about June 24, 2017, Dust B Gone and Robert and Jean Gilson, (hereinafter “the Gilsons”), entered into a residential construction agreement wherein Dust B Gone agreed to install vinyl wood planks in Gilsons’ home located at 18095 N. Saddle Ridge Drive, Surprise, AZ 85374.
The Gilsons purchased the tile from Floor Décor. Although the Gilsons purchased wood planks with a low sheen, some of the planks had a high sheen. Additionally, some of the planks contained prints and smudges.
On or about August 22, 2017, Dust B Gone began installing wood flooring in the Gilsons’ home.
The installer hired by Dust B Gone to install the plank tile did not inform the Gilsons that there was a difference in sheen or that there were prints and smudges on the tile.
On or about September 1, 2017, Dust B Gone completed the installation.
On or about September 22, 2017, the Registrar received a complaint from Mrs. Gilson alleging deficiencies on the part of Dust B Gone.
On October 23, 2017, in response to Ms. Dust B Gone’s complaint, Registrar Investigator Jim Dimond, (hereinafter “Mr. Dimond”), conducted a job-site inspection.
On November 7, 2017, Mr. Dimond issued a Directive to Dust B Gone from the Registrar. The Directive provided, 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 are hereby directed to remedy the following violations by the appropriate means:
The respondent installed a tile plank floor that exhibits a significant difference in sheen. It was installed and grouted.
The respondent knew or should have known there was a sheen difference and reported it to the customer prior continuing.
Additionally, some tiles have hand prints and smudges that are evident on tiles that should not have been installed.
In the kitchen, the tile offset pattern varies and shall also be corrected.
The November 7, 2017 Directive stated that the above work had to be
completed by 5:00 p.m. on November 23, 2017.
Dust B Gone did not correct the items listed in the Directive by November
23, 2017.
15. Dust B Gone filed a timely response to the Registrar’s citation.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. A hearing was held on February 14, 2018.
18. At hearing, Mrs. Gilson testified that Dust B Gone never informed her or her husband that the tile was defective. Mrs. Gilson stated that Dust B Gone failed to correct the work during the time frame for compliance under the Directive.
19. Ms. Brown testified that on August 24, 2017, she told Mrs. Gilson that something was wrong with the tile when she visited Mrs. Gilson’s home, after a substantial amount of tile had been installed.
20. Ms. Brown testified that her installer told her that he never told the Gilsons about the tile because he was afraid that he would be fired. Ms. Brown contended that she should not be responsible for her installer’s work. Ms. Brown argued that she should not be responsible for the poor work because she did not purchase the tile. Ms. Brown testified that she attempted to purchase new tile from Floor Décor during the timeframe for compliance under the Directive, however, all of Floor Décor’s tile was defective.
21. Administrative notice is taken of Respondent’s prior License record on March 6, 2018. Such prior License record reflects that Respondent’s License No. 296848 was first issued on April 30, 2015. Such prior License record shows that there are two open complaints against Respondent’s License. Such prior License record also shows that three complaints resulted in discipline against Respondent and one complaint was closed against Respondent which was resolved or settled by Respondent or withdrawn by the complainant after issuance of a corrective work order or formal citation.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
A.R.S. § 32-1154(A) provides:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
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3. Violation of any rule adopted by the registrar.
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22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. (Underscore added.)
A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The preponderance of the evidence shows that the work by Dust B Gone
was not in compliance with the Registrar’s workmanship standards. If Dust B Gone could not install the tile without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by the Gilsons. Dust B Gone did not obtain such a warranty disclaimer in this case.
11. The preponderance of the evidence shows that Dust B Gone did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
12. The preponderance of the evidence shows that Dust B Gone violated A.R.S. § 32-1154(A)(22) by failing to comply with the Directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 264798 of Dust B Gone Tile Removal, LLC shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Dust B Gone Tile Removal, LLC to pay the sum of $500.00 as a civil penalty.
It is further recommended that if Dust B Gone Tile Removal, LLC 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 Dust B Gone Tile Removal, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Dust B Gone Tile Removal, LLC, as defined in A.R.S. § 32-1101(A)(5), unless Dust B Gone Tile Removal, LLC 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, March 6, 2018
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors