ALJDEC decisions subject to certification as final
2017A-6066-CHC-ROC · Registrar of Contractors · 2018-05-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jason William Kindler,
COMPLAINANT,
v.
Solution Flooring Services LLC,
License No: 314993
RESPONDENT.
No. 2017A-6066-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 02, 2018 at 8:30 AM.
APPEARANCES: Jason Kindler (“Complainant”) appeared on his own behalf with John Wabeke as an expert witness. Steven Nelsen appeared for the Arizona Registrar of Contractors (“the ROC”). Karen Gross was present as an observer. No appearances on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
According to the ROC’s public website, on or about August 03, 2017, the ROC issued License No. 314993 specialty dual license contracting to Respondent. Mr. Bradley Allen Langford (“Mr. Langford”) is the qualifying party/member on this license. Respondent’s address of record on the license is 111 E. 450 N. Providence, Utah 84332-8400.
On December 04, 2017, Complainant filed a complaint with the ROC alleging that Mr. Langford had had abandoned his contract to perform renovation work at Complainant’s property at 20352 E. Camina Plata Queen Creek, AZ 85142. According to the complaint, Respondent was paid in full by check dated October 17, 2017, for $18,633.00. Per Complainant, the project was supposed to commence on October 13, 2017, and be completed by October 20, 2017.
An invoice Complainant attached to his complaint shows Respondent issued an estimate to Complainant on October, 13, 2017. Charges for the estimate totaled $18,633.00, including labor and installation materials. Although neither party signed the document, it did provide a description of the construction work that Respondent would perform. No start or completion dates were noted. Also, Respondent’s license number did not appear on the document, and no language appeared to apprise Complainant of his right to file a complaint with the ROC for Respondent’s alleged violation of Ariz. Rev. Stat. § 32-1154(A) with the time allowed by Ariz. Rev. Stat. § 32-1155(A), or provide the ROC’s public website address and telephone number.
Complainant also attached a copy of personal check #1713 to his complaint issued to Respondent on October 17, 2017, for $18,633.00.
The ROC received Complainant’s complaint on December 06, 2017. The complaint was assigned to Steven Nelsen (“Investigator Nelsen”), for investigation. On December 07, 2017, Investigator Nelsen mailed a job inspection letter to Respondent, notifying him that a jobsite inspection was to take place. The inspection was conducted on January 10, 2018. Complainant attended, but Respondent did not. Of the nineteen allegations of poor workmanship originally levied against Respondent by Complainant, Investigator Nelsen substantiated six complaints: (a) incorrect transition lines in tile work, (b) inconsistent grout spacing, (c) excessive uneven installation of tile (un-level and excess lippage), (d) excessive hollow spots, (e) sub-floor was not leveled prior to installation, and (f) door frames busted/broken during installation.
On January 16, 2018, Investigator Nelsen issued a Directive From The Registrar, requiring Respondent to remedy the aforementioned violations by appropriate means, in relevant part as follows:
Complete project as per contract and manufacturers recommendations. Including proper layout, preparation of subfloor, spacing and transitions between flooring materials.
Incorrect Transition lines in tile work.
Inconsistent grout spacing.
Excessive uneven installation of tile (unlevel and excess lippage).
Excessive hollow spots.
Sub-floor was not leveled prior to installation.
Door frames busted/broken during installation
The deadline for Respondent to comply with the Directive was on or before 5:00 p.m. on February 02, 2018. Respondent did not comply.
After Respondent failed to comply, Investigator Nelsen escalated the complaint to the ROC’s legal department.
On February 05, 2018, the ROC issued a formal Citation to Respondent that charged cause to suspend or revoke Respondent’s license under Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(4), 32-1154(A)(9), 32-1154(A)(12), and 32-1154(B), as well as Ariz. Admin. Code R4-9-108. The citation reads, in pertinent parts:
The Registrar hereby notifies Solution Flooring Services LLC that if the act or acts charged in the written complaint are proved at an administrative hearing, then Solution Flooring Services LLC may be found to have violated the following statutory provisions and rules:
A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”).
A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).
A violation of A.R.S. § 32-1154(A)(4)(“Failure to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance.”).
A violation of A.R.S. § 32-1154(A)(9)(“Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter.”).
A violation of A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter.”).
1158(A): A violation of A.R.S. § 32-1158(A)(“Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.”).
A violation of A.R.S. § 32-1154(A)(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.”).
Mr. Langford’s written response was due on or before February 15, 2018. Mr. Langford failed to respond.
The ROC referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on May 02, 2018. Complainant testified, along with another witness on his behalf, and submitted twelve exhibits. Investigator Nelsen also testified. No testimony or exhibits were offered on behalf of Respondent.
Additional Evidence
At the hearing, Complainant called John Wabeke (“Mr. Wabeke”) to testify as an expert witness. Mr. Wabeke testified that he inspected Complainant’s floors on December 01, 2017. As a result he drafted a detailed report of his findings. In his report Mr. Wabeke noted that there were six areas of concern regarding the flooring that had been partially completed in Complainant’s home: (a) lippage, (b) hollow tiles, (c) un-level flooring, (d) incorrect tile installation (e) incorrect grout application, and (f) substandard brick pattern workmanship. During his testimony Mr. Wabeke opined that in order to correct the aforementioned flooring errors, Complainant would need to have the work that had been completed, partially or otherwise, removed and properly replaced.
During Investigator Nelsen’s testimony he mentioned on more than one occasion that his inspection of Respondent’s work on Complainant’s floors was the worst tile workmanship/incomplete project he had ever witnessed. Investigator Nelsen also opined that, for all six areas of substantiation, Complainant would need to have the work removed and replaced because the substandard work that had been performed was irreparable.
Complainant testified that he had to pay a separate party a sum total of two thousand dollars to do the demolition for the underlying project because Respondent did not show up as scheduled. Per Complainant, he was informed on more than one occasion that Respondent’s crew were not being paid for their work at his home which is why laborers stopped reporting for the project. Complainant offered several pages of text message exchanges between himself, Respondent, and the crew foreman to outline the numerous times he attempted to get further clarity on what monies his paid-in-full check covered, if any, and when Respondent planned on finishing the underlying project.
Complainant also established that he made his property accessible for Respondent to complete the project. After Complainant filed his complaint with the ROC, Respondent ceased all communication with him. Complainant has not had use of the project area in his home for approximately six months as a result of Respondent’s failure to complete the underlying construction renovation.
Respondent did not appear at the hearing and therefore did not provide evidence regarding the alleged violations. As to the six specific allegations of wrongdoing alleged by the ROC, Respondent has acquiesced to each of them.
The record reflects that the contracted work assignment was not completed, which constitutes abandonment on Respondent’s part. Per the testimonies of Mr. Wabeke and Investigator Nelsen, the work that Respondent did complete, arguably so, did not meet the minimum construction standards that Respondent was obligated to adhere to. Further, Complainant testified that on more than one occasion Respondent sent independent workers to his home who were either working under Respondent’s license, or were unlicensed altogether.
Upon review, the available credible evidence establishes that Respondent failed to comply with the ROC’s January 16, 2018, directive, failed to try and take appropriate corrective action to comply with said directive, and is therefore in violation of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(4), 32-1154(9), 32-1154(12) and 32-1154(B).
Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 02, 2018. Such prior License record reflects that Respondent’s License No. 314993 has not previously been issued formal discipline by the ROC. Although, the record does reflect, that there is one open complaint against Respondent’s license.
CONCLUSIONS OF LAW
The Notice of Hearing the ROC mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. See Ariz. Rev. Stat. §§ 41-1092.04 and 41-1061(A).
The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A).
The ROC bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
In the present case, Respondent has not provided any mitigating evidence or raised any affirmative defenses sufficient to overcome or rebut the credible evidence provided by Complainant.
Complainant has established that he paid Respondent $18,633.00 for renovation work, and that Respondent failed to properly complete the job. Complainant also established that he was never refunded the amount he paid, in part or in full, by Respondent. Additionally, Complainant has shown that Respondent failed to comply with the Directive From The Registrar issued on January 16, 2018. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and Ariz. Admin. Code R4-9-108.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the final order in this matter, Respondent Solution Flooring Services LLC, License No: 314993 shall be suspended for five (5) business days.
IT IS FURTHER RECOMMENDED that five days after the effective date of the final order in this matter, Respondent Solution Flooring Services LLC, License No: 314993 be suspended based on its violation of Ariz. Rev. Stat. §§ 32-1154(A)(12), and 32-1158(B) until such time that Respondent provides written proof that is acceptable to the ROC that it has amended its form contract to comply with Ariz. Rev. Stat. § 32-1158(B).
IT IS FURTHER RECOMMENDED that Respondent shall pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
IT IS FURTHER ORDERED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, the ROC shall 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 Ariz. Rev. Stat. § 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 is forty days after the date of that certification.
Done this day, May 22, 2018.
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors