ALJDEC decisions subject to certification as final

2018A-04519-CHC-ROC · Registrar of Contractors · 2019-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2019 APPEARANCES: Patricia Isela Herrera, Respondent, Christian and Vanessa Morales, for the Respondent, Lisa Melton, Registrar Inspector ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT Respondent, Acid Stain Designs LLC, [hereinafter “ASD”] is the holder of License number 257919 issued by the Arizona Registrar of Contractors. (ROC).[1] On or about September 25, 2017, Patricia Isela Herrera, Complainant herein, paid ASD a deposit payment of $2,500 on an Invoice ASD presented to Ms. Herrera.[2] Per the said Invoice ASD proposed to A. Grind concrete patch B. Repair all cracks. C. Moisture primer coat, followed by 1st coat of metallic epoxy D. 2nd and final coat of metallic epoxy finish. E. Fireplace overlay - resurface over brick finish with metallic epoxy. F. Remove tile in restroom, G. Baseboards will get stained with epoxy. H. Customer will re-paint.[3]

/// At the hearing (discussed below) ASD admitted there was no written contract for this project between ASD and Ms. Herrera. The total charge reflected by the Invoice was stated to be $5,005.00.[4] After ASD applied a “discount” of ($385.00), the net total for this project amounted to $4,620.00. ASD required all payments to be made in cash. Ms. Herrera paid ASD a deposit, in cash, of $2,500.00 leaving a net balance of $2,120.00 on the Invoice.[5] On or about September 24, 2018, the Registrar received a Complaint against ASD from Ms. Herrera alleging ASD performed below standard, poor work.[6] January 29, 2019, after written notice to the parties, a jobsite inspection [hereinafter, “JSI”] was conducted. At the JSI, the Complainant was present, but no ASD partner, agent or employee appeared for the JSI. The JSI was conducted and Investigator Melton recorded her observations and impressions in her JSI Notes.[7] Accompanying the JSI Notes are 32 color photographs taken during the JSI by Investigator.[8] Seven of the nine allegations of the Compliant were substantiated by Investigator Melton.[9] On March 21, 2019, Investigator Melton issued a Written Directive[10] to ASD 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). …You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 8, 2019. [Emphasis in the original]. You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Concrete floors have chips. Investigator’s Observation: Numerous chips. Complainant stated that every time she drops something substantial (example was a coffee cup) the floor chips. Complainant refuted that this was possible and banged a dining room chair on the floor, it chipped. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 2: Concrete floors have become dull even with use of product. Investigator’s Observation: Respondent stated that he verbally advised Complainant what to use to clean the floor. No contract was provided. Complainant stated that all of the floor has been cleaned in the same manner. Some areas are shiny and some are dull. Dull areas were under furniture as well as in the open. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 3: Division from one room to the next visible (not seamless). Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 6: Clump of concrete left in computer room against built in bookcase. Investigator’s Observation: Clump is apparent but is not concrete. It is debris under the edge of the bookcase that was not removed prior to the application of the product. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 7: Edges against baseboard “chunky” not seamless/straight. Investigator’s Observation: Edges against some of the baseboards have chips and voids. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 8: Areas missing stain or final epoxy coating – floor has areas that are not smooth. Investigator’s Observation: Some areas appear to not be fully and/or correctly completed. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 9: Edges of countertop not smooth. Investigator’s Observation: Countertop is uneven and also contains chips and voids. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

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, and after written notice to the parties, Investigator Melton conducted a Compliance Inspection at the job site on April 15, 2019.[11]. Again, the Complainant was present but no partner, agent or employee appeared for the Compliance Inspection.[12] Although by testimony at hearing, ASD did come to the site during the time period between the date of the Directive and the date of the compliance deadline contained in the body of the Written Directive. At that time ASD only polished a portion of the flooring on the job site. None of the seven items liste4d in the Directive appeared to have been addressed or corrected. Investigator Melton’s Compliance Notes reflect: Compliance Jobsite General Notes: I proceeded with the Compliance Inspection at the designated time. I saw chips, dull areas, obvious room divisions, a clump of material at bookcase, uneven areas at baseboard, areas (some under furniture) which appear to be missing coating and rough edges at countertop.

Compliance Findings: Complaint Items #1, #2, #3, #6, #7, #8 and #9 (all of the Items identified for corrective work) do not appear to have been corrected by appropriate means. The Directive has not been met by the Respondent.

On April 24, 2019, the ROC issued a Citation against ASD, charging it with possible violations of Charge: 1 A.R.S. § 32-1154(A)(3)[13] violation of any rule adopted by the Registrar - Namely A.A.C. R4-9-108;[14] Charge: 2 A.R.S. § 32-1154(A)(22)[15] A hearing was held on October 16, 2019 before a fact-finder of the Office of Administrative Hearings, an independent agency separate from the ROC. At the hearing Investigator Melton testified consistent with the Job Site Inspection Notes and her Compliance Inspection Notes. Her testimony revealed that the seven of the nine items listed on Complaint’s Complaint were substantiated. Each of the seven items listed in the Written Directive involved below industry standard workmanship contrary to A.A.C. R4-9-108. The Written Directive ordered ASD to remedy the Directive’s listed seven items by the appropriate means on or before 5:00 p.m. on April 8, 2019. Contact with Ms. Herrera the day after the April 8, 2019 compliance deadline confirmed that ADS had not attempted and did not remedy by remedy by the appropriate means any of the seven listed items in the Written Directive. Moreover, Investigator Melton’s Compliance Inspection on April 15, 2019 confirmed that ASD had not made any effort to comply with – and did not comply with – any of the Written Directive’s seven listed items. Complainant Herrera testified at hearing that now written agreement between ASD and Herrera was singed or presented to her. She explained that remaining unaddressed by ASD are multi-colored streaking of epoxy on her stained concrete floors; ongoing chipping and disfigurement of the stained floors; the concrete floors sheen had dulled, especially in traffic areas; a division line between rooms is visible and unsightly; the edges against baseboards are not consistent or straight; some of the floors are missing stain and other lack application of a final epoxy coating; edges on the kitchen counter top are not smooth, they are uneven, and there are chips and voids present. Complaint offer and admitted photographs of her observations for review by the fact-finder.[16] She stated that after the Written Directive’s date and before the compliance deadline, ASD did come to the property, but did not repairs. It simply made an effort to polish and buff the some of the floor surfaces. She confirmed that she spoke with Investigator Melton on or about April 8, 2019 and advised that none of the items contained in the Written Directive had been repaired. Administrative notice is taken of ASD’s prior License record as reflected on the Registrar’s public website on October 30, 2019. Such prior License record reflects that ASD’s License No. 256686 was administratively suspended by the ROC on September 5, 2019 when it was reported to the ROD that ASD’s bond on file with the ROC was cancelled on August 23, 2019. As of October 30, 2019, this license remains suspended.] That ASD failed or refused to participate in either the JSI or the Compliance JSI; that ASD failed or refused to comply with the orders of the Written Directive without having provided any defense or reasonable excuse for such failure; that ASD has allowed its bond to be cancelled resulting in its current license suspended status; and that no replacement bond has been filed by ASD, all are determined to be aggravating circumstances. There are on mitigating circumstances shown. ASD’s conduct demonstrates a complete disregard for the legislative safeguards Arizona’s government has put in place to protect Arizona consumers from unscrupulous contractors. ASD has shown by its conduct in this matter that at this time it cannot or refuses to be regulated. The aggravating circumstances outweigh the mitigating circumstances 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 violation 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). 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.” ARIZ. REV. STAT. § 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). As to the issue of poor workmanship, the evidence established at least seven items where ASD’s work was below industry standard of workmanship. Therefore, Complainant did establish that ASD 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). By a preponderance of the evidence, Complainant did establish that ASD violated 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 should revoke Respondent Acid Stain Designs LLC,’s ROC License Number 257919, 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, October 30, 2019.

/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. [2] Agency Record, Invoice, page 50. [3] Ibid. [4] Id. [5] Id. [6] Agency Record, “Complaint,” pages 51 and 52. [7] Agency Record, pages 48 and 49. [8] Agency Record, pages 17-47. [9] Agency Record, “Job Site Inspection Notes,” pages 48 and 49. [10] Agency Record, “Directive,” pages 13-15. [11] Agency Record, “Compliance Inspection Notes,” pages 6and7. [12] Ibid. [13] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar [14] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [15] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added). of time after receiving a written directive from the Registrar. [16] See, Complainant’s Exhibits 1 and 2 along with Complainant’s typed notes on the photograph pages.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826