ALJDEC decisions subject to certification as final

2018A-04519-CHC-ROC-RHG · Registrar of Contractors · 2020-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Isela Herrera,

Complainant

Acid Stain Designs LLC,

ROC License: ROC 257919,

Respondent

No. 2018A-04519-CHC-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 28, 2020.

APPEARANCES: Patricia Isela Herrera, Complainant, appeared on her own behalf. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

_____________________________________________________________________

FINDINGS OF FACT

On August 18, 2009, the Registrar of Contractors (ROC) issued License No. 257919 for Specialty Dual CR-5, As Restricted by the Registrar, to Acid Stain Designs LLC (Respondent). Respondent’s address of record for the license is 12377 West Highland Avenue, Avondale, AZ 85392-4273. Vanessa Giorginna Morales is listed on the license as Qualifying Party and Member.

Pursuant to Arizona Administrative Code (A.A.C.) R4-9-17, administrative notice is taken of Respondent’s prior License record, for License No. 257919, as reflected on the ROC’s public website on January 28, 2020. Such prior License record reflects that Respondent’s license is suspended. The record also reflects that there is one disciplined case and open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent’s surety bond was cancelled effective August 23, 2019.

On or about September 27, 2017, Patricia Isela Herrera (Complainant) entered into a verbal and written contract agreement whereby Respondent was to apply epoxy flooring and install countertops at Complainant’s residential home located at 4148 North 4th Avenue, Phoenix, AZ 85013. The project commenced on or about September 27, 2017, and stopped on or about October 1, 2017. According to the Complaint, the amount of the contract was $5,000.00 and Complainant paid Respondent a total of $5,000.00.

On or about September 24, 2018, the ROC received a Complaint from Complainant alleging poor workmanship.

On an unspecified date, the ROC issued a Jobsite Inspection Notification letter to the parties, providing proper notice to them, and advising them that an onsite review would be conducted at the project site by an ROC investigator on January 29, 2019 at 3:30 p.m.

On January 29, 2019, ROC investigator Lisa Melton (Investigator Melton) conducted an inspection of the work that had been done on the project to date and took 32 photographs. All parties were present at the Jobsite Inspection.

On or about March 21, 2019, Investigator Melton issued a Directive From The Registrar (Directive) to the parties because he substantiated Complainant’s allegation that Respondent abandoned the project. Specifically, Respondent was ordered to remediate complaint items 1, 2, 3, 6, 7, 8, and 9 via appropriate means. The compliance deadline for the Directive was April 8, 2019.

On or about April 18, 2019, Investigator Melton conducted a Compliance Jobsite Investigation. Investigator Melton indicated that items 1, 2, 3, 6, 7, 8, and 9 were not corrected by appropriate means.

On or about April 24, 2019, the ROC issued a Citation to Respondent for alleged violations of Arizona Revised Statute (A.R.S.) §§ 32-1154(A)(3) and 32-1154(A)(22), and A.A.C. R4-9-108. Respondent was given until May 9, 2019, to respond with its Answer or face discipline pursuant to A.R.S. §§ 32-1154(A)(22) and 32-1155.

On or about November 27, 2019, the ROC referred this matter to the Office of Administrative Hearings (OAH), an independent state agency, for a rehearing on January 23, 2020. The rehearing was rescheduled for January 28, 2020.

Respondent did not request to appear telephonically and did not request that the rehearing be continued. Although the start of the rehearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Melton also did not appear at the rehearing.

HEARING EVIDENCE

At the rehearing, Complainant testified that she hired Respondent to put epoxy on her concrete floors. Soon after the project commenced, Complainant asked Respondent to also install countertops. They orally agreed upon the amount for the countertops at $1,000.00. Complainant paid Respondent an additional $500.00 for the countertops. On or about September 27, 2017, Respondent completed the job and everything looked great.

However, after about six months, Complainant noticed streak marks and scratches on the epoxy. She also noticed the floors became dull. She contacted Respondent who told her to use warm water and vinegar. Complainant swept, mopped, and waxed the floors but the floors still appeared dull and had streaks. Furthermore, the poor quality of work done by Respondent resulted in noticeable cracks and chips anytime Complainant dropped something.

Respondent gave Complainant a one year warranty on the work and a two year warranty on the materials. Complainant called Respondent many times to fix the cracks and chips. Respondent never responded during the warranty period. Complainant wanted a nice and durable floor, not one that lasted six months. Complainant filed a Complaint as a result of Respondent’s disregard.

Complainant testified that there were two Jobsite Inspections scheduled because Respondent did not get the notification for the first inspection. It was discovered that there was another contracting company with a similar name and the wrong company was notified. Christian Morales, an employee of Respondent, appeared at the second scheduled Jobsite Inspection. At that Jobsite Inspection, Mr. Morales was adamant that his floors did not crack or scratch. Mr. Morales took one of Complainant’s kitchen table chairs and banged it on the floor to prove that his floors did not crack. As a result of Mr. Morales’ actions, the floor chipped and cracked.

On or about April 5, 2019, Respondent went to Complainant’s home to correct all items per the Directive. However, Respondent did not complete the corrective work and left the floors in bad condition and the countertops as they were.

On an unspecified date after April 5, 2019, Complainant requested a Compliance Jobsite Inspection. Investigator Melton determined that the corrective work performed by Respondent was unacceptable. The countertop edges were rough, the floor still had chips and dull areas, and there were uneven areas at the baseboard.

On an unspecified date, Complainant appeared at a hearing at the OAH. Respondent and Complainant discussed the issues outside of the presence of the Administrative Law Judge. At that time, Complainant and Respondent agreed that Respondent would correct the issues by August 23, 2019.

On or about August 16, 2019, Respondent notified Complainant that it could not fix all of the issues because it did not have enough money. Respondent requested a postponement until September 18, 2019.

On or about September 18, 2019, Respondent notified Complainant that the work would start the following week. Complainant was uncomfortable with Respondent’s second postponement and requested a hearing due Respondent’s noncompliance of their agreement.

A hearing was conducted at OAH, however, the hearing was not recorded and the ROC deemed the hearing not valid. After Complainant learned of this decision, she contacted Investigator Melton. Investigator Melton instructed Complainant to contact the ROC legal department. Due to Complainant’s schedule, she was unable to contact the ROC’s legal department. Complainant was notified of the date of the rehearing about one week prior to January 28, 2020.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 clearly established that Respondent poorly applied epoxy to Complainant’s concrete floors. There was evidence that the floors streaked, cracked, chipped, and eventually became dull soon after the application. Respondent, in an effort to prove Complainant wrong, used a chair to demonstrate that its epoxy did not crack. That demonstration failed. Complainant proved, by a preponderance of the evidence, that Respondent performed work below industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C R-4-9-108.

Furthermore, Complainant established that Respondent failed to perform corrective work when it did not address all the items on the Directive. Investigator Melton observed the incomplete work at the Compliance Jobsite Inspection. Thus, Respondent failed to take appropriate action following a written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

Complainant may petition the ROC’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 257919.

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)(7), 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, February 17, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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