FINACT2018-05421-CHC-ROC.pdf

2018A-05421-ROC · Registrar of Contractors · 2019-05-22

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

James Angerami, Case No. 2018-05421 COMPLAINANT, Docket No. 2018A-05421-CHC-ROC v. A Seamless Floor Company LLC, FINAL ADMINISTRATIVE DECISION DBA: ASF Company, AND ORDER License No. ROC 296849, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on June 24, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated May 14, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Copy mailed via USPS First Class mail May 14, 2019 to: Respondent A Seamless Floor Company LLC DBA: ASF Company 3475 E Augusta Ct Queen Creek, AZ 85142 Complainant James Angerami 515 E Carefree Hwy 876 Phoenix, AZ 85085 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Case No. 2018-05421 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.23.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Angerami, No. 2018A-05421-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE v. DECISION A Seamless Floor Company LLC, DBA: ASF Company ROC License: ROC 296849 RESPONDENT HEARING: April 1, 2019 APPEARANCES: Complainant James Angerami appeared on his own behalf.

Bryan Mercado, Owner and Qualifying Party, appeared on behalf of Respondent A

Seamless Floor Company LLC doing business as ASF Company.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

1. A Seamless Floor Company LLC doing business as ASF Company

(Respondent) is the holder of License No. 296849 issued by the Arizona Registrar of

Contractors (Registrar). 2. On or about June 4, 2018, James Angerami (Complainant) entered into a verbal contract Respondent to seal his 4,600 square foot patio and fire pit area. 3. On or about November 13, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg 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

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.23.2019 ROC LEGAL

$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 Tuesday, January 15, 2019. You are hereby directed to remedy the following violations by the appropriate means: Complaint item #3. During this investigation the complainant pointed out small areas throughout the patio, steps, fire pit and cap stone that had small pebbles, sand or other foreign debris sealed under the top coat.

Complaint item #4. During this investigation the complainant pointed out various small areas throughout the patio that had a white haze or discoloring sealed under the top coat. I also observed a light brown colored streak under the top coat in one specific area. I did not observe any “flaking away”.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent made no attempts to correct the work identified in the written directive. After the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed. 6. The Registrar issued a Citation against Respondent, charging possible

violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-

1154(A)(22).

7. Investigator Fagerburg testified that he observed sand, pebbles, and

gravel under the sealant throughout the job. Investigator Fagerburg also indicated that

the sealant product used was intended to be used on porous surfaces like concrete.

8. Complainant testified that he entered into a verbal contract with

Respondent to complete the project of sealing of his travertine patio for $6000.00 cash.

Complainant stated that he paid a $2000.00 cash deposit when the project started, and RECEIVED 4.23.2019 ROC LEGAL

paid $5500.00 in total. Complainant indicated that the product used on his project was for use over concrete. Complainant acknowledged that he helped “Manny” polish the floor during the project. Complainant testified that he noticed the white on the stone on

or about August 17, 2018 and notified Respondent of the issue.

9. Mr. Mercado testified that Complainant’s contract with Respondent was

only for $1500.00, that Complainant paid a $500.00 deposit and $500.00 at completion

and still owed $500.00 toward the project. Mr. Mercado stated that Complainant

purchased the product that was used on the project and that the product description

provides that “[i]ts performance as a paver sealer is unexcelled.”1 Mr. Mercado

asserted that Complainant sanded the floor after Respondent finished and Complainant

had someone else perform work on the project as indicated by a text message in which

Complainant indicated that someone else was going to charge him $500.00 to correct

the issue in a specific area. Mr. Mercado had no evidence that the work referenced

was actually completed by the other party. Mr. Mercado admitted that Respondent

made no attempts to correct any of the work identified in the written directive from the

Registrar because it was “not [his] problem.” Mr. Mercado opined that the white areas

Investigator Fagerburg observed were the same as a block wall turning white and the pebbles Investigator Fagerburg observed were on top of the sealant and not between the layers, but acknowledged that he did not go to the jobsite to inspect the work. Mr. Mercado testified that “Manny” is not an employee of Respondent, but Respondent pays “Manny” $23.00 per hour cash under the table to perform work for Respondent. Mr. Mercado acknowledged that “Manny” was not licensed by the Registrar. Mr. Mercado admitted that “Manny” did not perform a vapor test prior to applying the sealant. Mr. Mercado stated that he did not received any warning from the Registrar about the lack of a written contract. 10. Administrative notice is taken of Respondent’s prior License record on April 22, 2019. Such prior License record reflects that Respondent’s License No.

It is noted that the product description provides that “Polyurethane 250 has been designed for use over concrete, acid stained surfaces, and various types of architectural concrete. Its performance as a paver sealer is unexcelled.” RECEIVED 4.23.2019 ROC LEGAL

296849 was first issued on March 23, 2015, and is suspended for non-renewal as of April 11, 2019. Such prior License record also reflects that there were no other complaints against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101

et seq.

2. 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).

3. The evidence established that Respondent’s work was not in conformity

with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.2 4. 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).3 5. Of particular note to the Administrative Law Judge was Mr. Mercado’s nonchalance as to Respondent’s failure to have a written contract in violation of A.R.S. § 32-1158 and in aiding and abetting the practice of unlicensed contracting by paying “Manny” cash under the table. His lack of concern of committing these violations of the 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.” 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.” 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.” RECEIVED 4.23.2019 ROC LEGAL

Registrar’s statutes calls into question Respondent’s ability to be regulated as a licensed contractor. ////

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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. 296849.

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. 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, April 22, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors