ALJDEC decisions subject to certification as final

2018A-2342-CHC-ROC · Registrar of Contractors · 2018-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2018 APPEARANCES: Douglas C. Brewer on his own behalf; Kathy Oller for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On August 13, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 4, 2018 at the Office of Administrative Hearing. 2. On or about October 4, 2017, Complainant Douglas C. Brewer hired Respondent Unique Flooring, LLC to do certain work at his house, including installing kitchen counter tops and a sink. 3. Unique Flooring holds license No. 296426 issued by ROC. Kathy Oller is Unique Flooring’s president. 4. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.[1] 5. Through the Citation, ROC alleges that Unique Flooring may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that ROC could not determine whether Unique Flooring has actually committed any of the alleged violations, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that Unique Flooring has violated any statute or rule. 6. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Unique Flooring’s license. 7. On May 24, 2018, ROC received from Mr. Brewer a complaint against Unique Flooring. 8. ROC assigned Investigator Cliff Corlett to Mr. Brewer’s complaint. Mr. Corlett conducted a jobsite inspection on June 8, 2018. 9. At the jobsite inspection, Mr. Corlett found that the countertop had a chip in it, that there was a seam that was not acceptable, and that there was some drywall damage. 10. On June 22, 2018, ROC issued to Unique Flooring a Directive that provided: Complaint Item 1: Kitchen granite counter chipped. Investigator’s Observation: Granite top was chipped on top near seam, there were also rough areas just under the tooled edge near the countertop seam. Respondent had made an incomplete repair on the end of the round edge of the bar top. Respondent should properly fill, repair and polish these areas to match the surrounding areas as closely as possible. If a reasonable match cannot be achieved then the granit should be replaced. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 2: Kitchen granite not cut squarely. Investigator’s Observation: Granite appears to have been cut to fit the out of square walls. Respondent was not contracted to install backsplash. It appears the Complainant was going to install his own tile backsplash. Industry standards for countertop installation without backsplash is for the granite top to be cut within 1/8-inch of the wall, or if using backsplash, then the tops shall be cut to fit within one half the thickness of the backsplash material. Appears the Respondent is within industry standards for countertop cutting.

Governing Rule: No violation could be substantiated.

Complaint Item 3: Kitchen granite counter unaceptable seam. Investigator’s Observation: The industry standards for acceptable seam widths allows for granite seams up to 1/16-inch. However those seams should be uniform in width. The Respondents seam is not uniform in width. the seam is at the maximum width at the front of the countertop, and the countertop sections are almost touching near the rear backsplash. If the seam was more uniform then the straightness issue along the front edge of the countertop would be greatly lessened or even eliminated. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 4: Countertop brace removed and not reinstalled. Investigator’s Observation: Bar top appeared to be properly braced. NO CONTRACTOR ACTION REQUIRED.

Governing Rule: No violation could be substantiated.

Complaint Item 5: Incorrect sink installed. Investigator’s Observation: Based on the existing countertop/sink configuration (old countertop in garage) the smaller garbage disposal sink bowl should have been located to the left side of the sink installation. Respondent installed smaller disposal bowl to the right. Parties appear to have resolved this issue financially.

Governing Rule: No violation could be substantiated.

Complaint Item 6: House key not returned. Investigator’s Observation: Not a workmanship issue. Governing Rule: No violation could be substantiated.

Complaint Item 7: Floor tile work not complete. Investigator’s Observation: Tile work completed by others. NO CONTRACTOR ACTION REQUIRED.

Governing Rule: No violation could be substantiated.

Complaint Item 8: Drywall damage where original corbels were removed from kitchen bar top. Investigator’s Observation: Respondents contract/proposal specifically excludes any plumbing and or electrical work however it does not exclude drywall damage repairs. RESPONDENT SHOULD PROPERLY REPAIR THE DAMAGED DRYWALL MATCHING THE SURROUNDING AREA AS CLOSELY AS POSSIBLE.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Rcc014 Corrective Work Order.rtf (in administrative record).

11. ROC’s June 22nd Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Brewer’s complaint were unsubstantiated. 12. ROC’s June 22nd Directive required Unique Flooring to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. July 12, 2018. 13. The record shows that Mr. Brewer was out of the state and that he had been unable to provide Unique Flooring with access to make the corrections that ROC ordered it to make. 14. Mr. Corlett requested that the parties provide him with a proposal for the completion of the work by July 27, 2018. When no proposal had been received by July 30, 2018, Mr. Corlett referred the matter to the ROC legal department. 15. On August 1, 2018, ROC issued to Unique Flooring the Citation. 16. At the hearing, Mr. Corlett testified that the industry standard for countertop seams is that these be less than 1/16th of an inch, and that they be uniform in width. His inspection revealed that the seam at issue did not exceed the 1/16th standard, but that it was not uniform, ranging from the maximum to almost no gap. 17. Mr. Corlett acknowledged that determining whether a non-uniform seam is out of compliance involves a subjective determination. In this case, his opinion was that the seam was not in compliance, which was supported by his observation that this change in width was causing (or contributing to) the front edge of the countertop not being straight. 18. Unique Flooring presented no evidence to show that the seam at issue was not out of compliance, nor did it present any evidence to show that the chip in the counter top or the damage to the drywall were not workmanship violations as ROC alleges. 19. In his complaint, Mr. Brewer declared that he had paid to Unique Flooring $12,401.58. At the hearing, he acknowledged that this was not true because he had had his credit card company rescind a payment of $5000. 20. The parties dispute the specifics of this $5000 payment and subsequent rescission. 21. The documents in the record show that Mr. Brewer’s credit card was charged this $5000 on March 21, 2018, and that before April 3, 2018, he had disputed the charge with his credit card company. 22. Mr. Brewer testified to the effect that he had not signed any paperwork, and that although he gave Unique Flooring the credit card information, he was not authorizing it to charge him until the job was complete, which he says has not occurred. 23. Ms. Oller testified that Mr. Brewer had authorized the $5000 payment and signed the appropriate credit card paperwork. Unique Flooring did not have a copy of a credit card receipt signed by Mr. Brewer. 24. Unique Flooring did have entered into evidence a notification from its credit card processing company showing that the dispute had been resolved in Mr. Brewer’s favor, and that the basis of the dispute was “Customer claims that the goods or services were not as described.” 25. Mr. Brewer did not present any evidence to corroborate his testimony that he had not authorized the $5000 payment, nor did he present any evidence to show that Unique Flooring’s credit card processor had misrepresented the basis of the dispute. 26. Mr. Brewer’s complaint includes a copy of the contract showing the original price of $13,912.35, a $7000 payment (that is not disputed), and various adjustments (both debits and credits), with the bottom line showing that an additional $5000.00 payment resulted in payment in full. 27. At the hearing, Mr. Brewer testified that he wanted his countertops fixed and was requesting that either Unique Flooring do so, or if it preferred, that it have someone else do the work. 28. Ms. Oller testified that Unique Flooring was not willing to make the corrections that ROC ordered it to complete because Mr. Brewer has not paid for the work at issue. Unique Flooring’s position is to the effect that the parties should now consider themselves even and go their separate ways. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. The scope of the hearing is limited to the issues properly noticed. See Ariz. Rev. Stat. § 41-1092.07(F)(6). 5. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 6. 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."). 7. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 8. 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). 9. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 10. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 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….

11. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 12. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32- 1154(A)(22). 13. The preponderance of the evidence shows that Unique Flooring violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. In particular, the three allegations in ROC’s Directive have been proven (i.e., chip in countertop, countertop seam not acceptable, and drywall damage). 14. The preponderance of the evidence does not show that Unique Flooring violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Unique Flooring has a valid justification in that Mr. Brewer was unavailable to provide access for Unique to make the corrections ROC ordered it to make. 15. The documentary evidence supports Unique Flooring’s position that Mr. Brewer had authorized the $5000 final payment that he subsequently rescinded. The preponderance of the evidence shows that Mr. Brewer’s complaint contained false information in that he had not paid to Unique Flooring $12,401.58 as he declared, but rather had paid Unique Flooring only $7000.00. 16. Because Unique Flooring has violated Ariz. Rev. Stat. sections 32-1154(A)(3), ROC has authority to discipline its license. Considering that Mr. Brewer has not paid for the work at issue and that he did not provide Unique Flooring with the access necessary for it to comply with the Directive, no discipline should be imposed. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter, the Citation in case No. 2018-2342 and the complaint on which it is based are dismissed. 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, October 23, 2018. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the complaint was issued or filed. There appears to be no dispute that ROC issued the Citation on August 1, 2018, or that Complainant filed with ROC a complaint against Respondent on May 24, 2018.

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