ALJDEC decisions subject to certification as final

2019A-00867-CHC-ROC · Registrar of Contractors · 2019-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2019, at 1:00 p.m. APPEARANCES: Lisa K. Saylan (“Complainant”) appeared on her own behalf; On the Level Repair and Remodeling LLC (“Respondent”) appeared through Kurt Richards, its Member/Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about August 16, 2007, the Registrar issued License No. ROC 236281 for General Residential B-3 General Remodeling and Repair Contracting to Respondent. 2. On or about February 22, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged that it had performed poor work on its contract to install granite countertops in the kitchen of her house at 1112 W. 9th St., Tempe, AZ 85281. Complainant alleged that the countertop had visible scratches and cracks and that, although the parties’ contract did not require Respondent to install granite on a pass-through ledge, it had done so. Complainant alleged that granite that Respondent had installed on the pass-through ledge had numerous design flaws. 3. The Registrar assigned the complaint to its Investigator, Dennis Bierma, for investigation. On or about March 27, 2019, Investigator Bierma performed a jobsite inspection. 4. On May 1, 2019, Investigator Bierma on behalf of the Registrar issued a directive to Respondent, requiring it to correct by appropriate means certain deficiencies in its work prior to May 27, 2019, at 5:00 p.m., in relevant part as follows: Complaint Item #3: “Granite now has scratches & visible cracks.” (All scratches and cracks throughout countertops shall be corrected by appropriate means. Kitchen sink countertop has scratch down the middle and any scratches or cracks along edges of any countertop.)

Complaint Item #5: “A granite pass-through ledge (not in contract nor authorized) was fabricated/installed.” (Complete and correct this item per original contract agreement.)[1]

5. On June 11, 2019, Investigator Bierma performed a compliance jobsite inspection. His Compliance Jobsite Inspection Notes stated that neither of the items on the directive had been complied with.[2] 6. Investigator Bierma referred the complaint to the Registrar’s Legal Department. On June 12, 2019, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(22).[3] 7. Respondent filed a timely written answer to the Citation. 8. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 9. A hearing was held on August 26, 2019. Complainant testified on her own behalf. Respondent presented the testimony of Kurt Richards, its Qualifying Party/ Member. Investigator Bierma also testified. Hearing evidence 10. Complainant and her partner wanted to upgrade their kitchen. As part of the upgrade, they contracted with Respondent for new black granite countertops. Investigator Bierma testified that the countertops have scratches on them that exceed the Registrar’s and industry standards. 11. Complainant testified that Respondent hired Sal of Take Me for Granite to perform repairs. Sal said that the granite was scratched during fabrication and that buffing or grinding down the granite to repair it would make it worse. Complainant acknowledged that the Registrar required her to allow Respondent to attempt repairs. She testified that she did not insist that Sal attempt to repair the scratches after he told her that he could not repair the scratches to improve the appearance of the granite. Complainant testified that she has not heard back from Respondent after Sal left the jobsite. 12. Mr. Richards testified that it took him a while to find someone to repair the granite and that Sal indicated that he could perform repairs, but that after inspecting the granite, Sal said that the resin would not stick and suggested using a marker to cover the scratches. 13. Mr. Richards testified that black granite is extremely brittle. Mr. Richards testified that it was impossible to fabricate black granite without cracks. 14. Complainant testified that no one told her that black granite was a poor choice for kitchen countertops and that Arizona Tile guaranteed its product. 15. Complainant’s house has an addition on the back. The former window between the kitchen and the addition has not been removed and, currently, is a pass-through between the kitchen and the back room of Complainant’s house. Respondent installed a 2” or 3” thick countertop on the former window ledge. 16. Complainant stated in the complaint that she did not want the countertop on the window ledge. Investigator Bierma testified that he confirmed that Respondent’s contract did not require Respondent to install a countertop on the former window ledge. Investigator explained that the directive required Respondent to remove the countertop and to restore the former window to its previous condition. 17. Mr. Richards testified that he was willing to take the window frame out and install drywall in the former window opening. 18. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website on this date. Respondent’s License No. ROC 236281 is current and in good standing. No previous discipline has been taken against the license. Complainant’s complaint appears to be the only one pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[4] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[5] Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[6] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] 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.”[8] 4. Complainant established that Respondent installed excessively scratched black granite countertops in her kitchen and installed a granite countertop that she did not want and that were not included in its contract on the ledge of the pass-through window between the kitchen and room addition of her house. Complainant therefore established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3),[9] namely A.A.C. R4-9-108.[10] 5. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of their failure to comply with workmanship standards. Complainant was willing to allow Respondent to repair its workmanship deficiencies but its subcontractor informed her the deficiencies could not be repaired to bring the work within applicable standards. Therefore, Respondent did not establish that Complainant refused to provide reasonable access for it to comply with the directive. 6. Mr. Richards acknowledged that Respondent failed to comply with the directive. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(22).[11] RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that on the effective date of the final order in this matter, License No. ROC 236281 of Respondent On the Level Repair and Remodeling LLC shall be suspended for a period of three (3) business days. IT IS FURTHER ORDERED that Respondent shall pay the sum of $250.00 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 final order, the Registrar shall 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 five days from the date of that certification. Done this day, September 12, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s electronic file at pdf page 18. [2] See id. at 4-5. [3] See id. at 49-54. [4] See A.R.S. § 32-1154(A). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] See A.A.C. R2-19-119(B)(2). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] Black’s Law Dictionary at page 1220 (8th ed. 1999). [9] 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.” [10] 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.” [11] 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