FINACT2019A-00688-ROC-FinalAgencyAction-6611.pdf

2019A-00688-RFA-ROC · Registrar of Contractors · 2019-11-14

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Jeff L. Johnston, Case No. 2019-00688

COMPLAINANT, Docket No. 2019A-00688-RFA-ROC v.

Floors Unlimited Inc., FINAL ADMINISTRATIVE DECISION AND License No. ROC 086526, ORDER 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 of each finding of

fact or conclusion of law.

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 accepts it.

CONCLUSION AND ORDER

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 December 18, 2019.

FINAL NOTE

On page 1, line 25 replace “Floors Unlimtied’s” with “Floors Unlimited’s”

On page 3 line 1 replace “The amount Mr. Ulmer owed was $445.05” with “The amount Mr.

Johnston owed was $444.05.”

On page 3 line 16 replace “word” with “wood.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 On page 4 line 5, delete “was” after “Mr. Ulmer.” Dated November 8, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail November 8, 2019 to: Respondent Floors Unlimited Inc 21609 N 12th Ave Ste 100 Phoenix, AZ 85027 Complainant Jeff L Johnston 215 E Citation Ln Tempe, AZ 85284

Copy sent electronically this same date to:

Registrar’s Counsel Michael Raine, Assistant Attorney General Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2019-00688 / DU

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 11.1.2019 OAH ALJ Recommendations - AZROC <[email redacted]> ROC LEGAL

New ALJ Decision transmitted for ROC (2019A-00688-RFA-ROC) OAH Electronic Decision Transmission System <[email redacted]> Fri, Nov 1, 2019 at 7:58 AM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-00688-RFA-ROC Filed by: OAH Filed on: 11/1/2019 Due Date for Final Agency Action (if applicable): 12/5/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-00688-RFA-ROC-ALJDecision-6597.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 11.1.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeff L. Johnston, No. 2019A-00688-RFA-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE DECISION Floors Unlimited, Inc., ROC License: ROC 086526, RESPONDENT.

HEARING: October 11, 2019 APPEARANCES: Complainant Jeff L. Johnston appeared on behalf of himself. John Marsh appeared on behalf of Respondent Floors Unlimited, Inc. Assistant Attorney General Michael Raine appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT

1. In July of 2017, Respondent Floors Unlimited, Inc. (Floors Unlimited)

agreed to remodel Complainant Jeff L. Johnston’s floor.

2. In February of 2019, Mr. Johnston filed a complaint with the Arizona

Registrar of Contractors (Registrar) against Floors Unlimited. Mr. Johnston alleged that

Floor Unlimited performed poor work in connection with a home remodeling project.

3. On April 4, 2019, Registrar Investigator Dennis Bierma issued a DIRECTIVE

to Floors Unlimited after completing a job site inspection. The Registrar substantiated that Floors Unlimtied’s work failed to meet minimum workmanship standards. The April 4, 2019 DIRECTIVE provided in relevant part, 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

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.1.2019 ROC LEGAL

treated as an aggravating factor should the Registrar pursue discipline of your licenses, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 1, 2019.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item #4: This section of flooring is once again buckling, it looks terrible and is even uncomfortable to walk on. (This is not the section in front of the door that was replaced last time, however; from the front door down each walkway to the left and to the right are the areas that should be corrected by appropriate means.)

4. On May 13, 2019, the Registrar issued a CITATION against the license of Floors Unlimtied’s license. Through the CITATION, the Registrar alleged that Floors Unlimited may have violated ARIZ. REV. STAT. section 32-1154(A)(3)(specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. section 32-1154(A)(22). 5. On June 11, 2019, the Registrar issued a FINAL ADMINISTRATIVE DECISION AND ORDER (Order) and found that Floors Unlimited violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (22). 6. On July 2, 2019, the Registrar received Mr. Johnston’s claim for a payout from the recovery fund. Mr. Johnston submitted a bid for labor from Home Solutionz and a bid for parts from Lumber Liquidators. Home Solutionz is a licensed contractor in the State of Arizona. The total amount of both bids was $7,421.10. 7. Mr. Johnston did not submit additional bids because he could not find another contractor who was willing to complete the repairs. 8. Recovery Fund claims reviewer Doug Ulmer compared the bid to the DIRECTIVE and determined that the bid was not out of scope. 9. Mr. Ulmer calculated Mr. Johnston’s payout award by subtracting the amount that Mr. Johnston paid under the contract from the total amount owed. Mr. Johnston paid $8,276.29. The total amount of the contract was $8,720.84.

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The amount that Mr. Ulmer owed was $445.05. The amount of the bid in the amount of $7,421.10 less $444.05, is $6,977.05. 10. The Registrar notified Mr. Johnston that he was eligible for a payout from the recovery fund in the amount of $6,977.05. 11. Floors Unlimited requested a hearing regarding the payout. 12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 13. On September 11, 2019, the Registrar issued a NOTICE OF HEARING setting the above-captioned matter for hearing on October 11, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 14. At hearing, Mr. Johnston testified on behalf of himself. The Registrar presented the testimony of Mr. Ulmer and submitted exhibits 1 through 10. John Marsh Shaun Marsh testified on behalf of Floors Unlimited and submitted exhibits 1 through 4. 15. Floors Unlimited asserted that the bid from Home Solutionz was excessive. Shaun Marsh is an employee of Floors Unlimited and the grand son of John Marsh. Shaun Marsh has a bachelor’s degree in Biochemistry and has 19 years of experience in word flooring. He is one of a few people certified in wood flooring in the State of Arizona. Shaun Marsh stated that he would only charge $25 an hour for moving furniture and that Floors Unlimited never charged Mr. Johnston a delivery fee. 16. Shaun Marsh explained that he would never give a quote for floor preparation without first knowing whether the floor needed to be pulled up. Shaun Marsh asserted that the quote for hardwood did not include a specific square footage. 17. Mr. Ulmer explained that he accepted the bid provided by Mr. Johnston because it was not out of scope with the DIRECTIVE. Mr. Ulmer also testified that the amount of the contract and the amount of the bid were similar in price. Mr. Ulmer also acknowledged that repairs can at times cost more than the original work performed. 18. The Registrar asserted that although there was no specific square footage provided for hardware, there was an overall charge along with a unit price and the square footage could be calculated by dividing the overall price by the unit price. 19. John Marsh stated that he has been in business for 29 years and he has

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always taken responsibility when there was a problem. John Marsh stated that he did not attend the workmanship hearing because his wife had serious health issues. John Marsh expressed that his family will always come first. John Marsh asserted that the bid was not fair and that Mr. Johnston will never accept that he has a moisture problem. John Marsh also expressed his concern that Mr. Ulmer was did not have experience in wood construction. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. 2. ARIZ. REV. STAT. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.1 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”2 A preponderance of the evidence is “[t]he 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.”3 4. After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainants’ actual damages. The award appears to properly remedy the workmanship violations for which Respondent was responsible. Respondent failed to establish by a preponderance of the evidence that the payout of $6,977.05 was excessive. RECOMMENDED ORDER

See 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). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY 1220 (8th ed. 1999).

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Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $6,977.05. 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 31, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors