ALJDEC decisions subject to certification as final

2018A-05421-ROC · Registrar of Contractors · 2019-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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). 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. On or about November 13, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

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 $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.

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. 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). 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. 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 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. 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. Administrative notice is taken of Respondent’s prior License record on April 22, 2019. Such prior License record reflects that Respondent’s License No. 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 Registrar’s statutes calls into question Respondent’s ability to be regulated as a licensed contractor. / / / / / / / / 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 ----------------------- [1] 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.” [2] 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.” [3] 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.”

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