ALJDEC decisions subject to certification as final

2018A-3342-ROC · Registrar of Contractors · 2019-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2019, 1:00 P.M. APPEARANCES: Complainant Miles Murzi appeared on his own behalf; Melissa Neumeyer, Owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Valley Paint and Coatings, LLC (Respondent), is the holder of License Number 306311 issued by the Registrar of Contractors (Registrar). 2. On or about July 19, 2018, Miles Murzi (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with an overlay flooring application performed by Respondent at a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $15,975.00. 3. The Registrar performed an inspection of the project on August 16, 2018. Thereafter, the Registrar issued a Directive, dated August 22, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 12, 2018, as follows: A. "Extremely poor work and unacceptable finished product (Concrete overlay floors)." 1. Unfinished areas of overlay at junction of overlay to block walls. 2. Bubbling in areas of overlay. 3. Steaking and/or insufficient color in areas of overlay (unsightly finishing). 4. Unfinished area of overlay at junction of overlay and gypsum wall board at area of step next to front door. 5. Excessive material/material build up on master bathroom wall at junction of floor to wall near the area of the shower. 6. Unfinished area of overlay at junction of overlay and rear sliding glass door. 7. Overlay residue on bottom track of sliding glass door. 8. Trowel marks/gouges in some areas (unsightly finishing). 4. The Registrar performed a compliance inspection on October 2, 2018, at which time the Registrar noted that work done on the Directive items still did not meet workmanship standards. 5. The Registrar then issued a Citation to Respondent, dated November 19, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract; c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing, after continuances, for February 5, 2019, at 1:00 P.M. 7. At the February 5, 2019, hearing, Complainant Miles Murzi testified on his own behalf. Respondent presented the testimony of Melissa Nuemeyer, Owner, Chris Nuemeyer, Installer, and Cory Neumeyer, Sales Manager. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 9 and Respondent’s exhibit numbers 1 - 16.[1] 8. The Investigator testified on behalf of the Registrar that Arlo Houston had been the original inspector on this matter but that he was no longer available to testify. He stated that he was Mr. Houston’s supervisor. The Investigator reviewed the findings in the Directive as well as those in the Compliance Jobsite Inspection Notes, dated October 5, 2018. He stated he never visited the project. 9. Complainant Miles Murzi testified as to each of the Directive items and submitted photographs of each of the items taken after Respondent’s corrective work. (Complainant’s Exhibit 6). With respect to excessive and residue areas of the overlay, he admitted that he had always intended to paint drywall and install baseboards, but not with respect to the block wall. 10. Melisa Nuemeyer, Owner of Respondent, testified on behalf of Respondent as to the events from demolition, install of the first overlay that Complainant did not like, and the installation of the second overlay. As to corrective work, she testified that that she had arranged to start the corrective work on September 10, 2018, between 9:00 A.M. and 10:00 A.M., and when the workers arrived, Complainant had already left at 9:15 A.M. (Respondent’s Exhibit 6, 9). She testified further that her workers returned the next day on September 11, 2018. 11. Chris Nuemeyer, Installer for Respondent, testified on behalf of Respondent that he oversaw the project. He stated that he did not and would not put sealer down until he got the final approval from Complainant, which he said he received. He further testified that inconsistencies in the floor are normal because of hand troweling. He further stated that on September 11, 2018, he chipped corners, did saw cuts, filled in pinholes, and added sealer. Lastly, he stated that he was aware that baseboards were to be installed and the walls painted. 12. Cory Neumeyer, Sales Manager of Respondent, testified on behalf of Respondent that he was present at inspection and stated that the inspector agreed at the initial inspection that floor variations were inevitable but later changed his outlook at the compliance inspection. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar. …

12. Failure in any material respect to comply with this chapter. …

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. The written directive shall set forth the time within which the contractor is to complete the remedial action….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) in Chapter requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein. 7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). With regard to the eight Directive items numbered above, the Tribunal is persuaded by the testimony of Complainant as well as the inspector’s findings and finds that numbers 1, 4, 5, 6, and 7 were not corrected and failed to meet the pertinent standard. With regard to Directive numbers 3, 4, and 8 regarding the unsightly finishing, the Tribunal finds that Complainant has not met his burden. 8. As to Respondent’s other arguments, there was no evidence presented that water left on the floor allegedly by Complainant was the cause of or contributed in any way to any Directive item. Further, that Complainant may have initially accepted the floor by paying for it does not excuse work not done in a professional and workmanlike manner. Similarly, that Complainant had planned to paint the walls and install baseboards does not excuse work not done in a professional and workmanlike manner. Lastly, the Tribunal does not find that Complainant’s later decision to have another contractor lay tile over the overlay to have any bearing on the issues. 9. A.R.S. § 32-1154(A)(12). Complainant has failed to present sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A). Because Respondent submitted a new compliant form contract, the Tribunal does not find that discipline for a violation of A.R.S. § 32-1158(A) is warranted. (Respondent’s Exhibit 16). 10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). Respondent contended that Complainant had refused access to the project to perform corrective work. However, while Complainant may have delayed access by leaving the residence early on September 10, 2018, there was no dispute that Complainant permitted access on September 11, 2018, and that Respondent proceeded with corrective work. Thus, as Respondent had the opportunity to correct the Directive items, it failed to present a valid justification for not completing them. 11. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) (Complaint items 1, 4, 5, 6, 7) and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Valley Paint and Coatings, LLC’s, License Number 306311 is suspended for two days. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, February 25, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s submissions to the Arizona Office of Administrative Hearings.

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