FINACT2019A-01073-ROC.pdf

2019A-01073-CHC-ROC · Registrar of Contractors · 2019-12-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Diane Bearden, Case No. 2019-01073 COMPLAINANT, Docket No. 2019A-01073-CHC-ROC v. Premier Flooring LLC, FINAL ADMINISTRATIVE License No. ROC 317787, DECISION AND 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 January 12, 2020. FINAL NOTE

On page 1, line 13 replace “July 2, 2018” with “February 7, 2018.

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 Dated December 3, 2019. By: /s/ Joseph Citelli __________________ Joseph Citelli Chief Counsel Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 3, 2019 to: Respondent Premier Flooring LLC 3648 W Southern Ave Ste 147 Phoenix, AZ 85041 Respondents Attorney Michael W. Thal, Esq. 6730 N Scottsdale Rd Ste 101 Scottsdale, AZ 85253 Complainant Diane Bearden 8907 E Lupine Ave Scottsdale, AZ 85260 Copy sent electronically this same date to: Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Case No. 2019-01073 / 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 11.25.2019 ROC LEGAL

OAH ALJ Recommendations - AZROC <[email redacted]>

New ALJ Decision transmitted for ROC (2019A-01073-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Mon, Nov 25, 2019 at 7:54 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-01073-CHC-ROC Filed by: OAH Filed on: 11/25/2019 Due Date for Final Agency Action (if applicable): 12/30/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-01073-CHC-ROC-ALJDecision- 6638.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 11.25.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Diane Bearden, No. 2019A-01073-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Premier Flooring LLC, ROC License: ROC 317787, RESPONDENT

HEARING: August 26, 2019 APPEARANCES: Diane Bearden (Complainant) appeared on her own behalf. Zachary Rosenberg, attorney, represented Premier Flooring LLC (Respondent). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. On July 2, 2018, the Registrar of Contractors (ROC) issued License No. 317787 for Specialty Dual CR-8 Floor Covering to Premier Flooring LLC (Respondent). Respondent’s address of record for the license is 3648 West Southern Avenue, Suite 147, Phoenix, AZ 85041. Jose Carlos Hernandez is listed on the license as Member, Qualifying Party.1 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 317787, as reflected on the ROC’s public website on November 8, 2019. Such prior License record reflects that Respondent’s license is currently active. The license has never been disciplined by the ROC. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through R L I Insurance Company effective July 1, 2018.2

3. On or about January 5, 2019, Diane Bearden (Complainant) entered into

a verbal contract with Respondent to remodel flooring throughout the house.

Complainant’s address was 8907 East Lupine Avenue, Scottsdale, AZ 85260. After the

project started on or about October 2018, Complainant verbally requested Respondent

to remodel the backsplash in the kitchen and the bathroom and install tile on the

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACWkrEAH. Id.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.25.2019 ROC LEGAL

fireplace. The entire project ceased in the end of November 2018. Complainant paid Respondent $7,980.00 for the price of the flooring. 4. On or about March 5, 2019, the ROC received a Complaint against Respondent from Complainant alleging poor workmanship. Complaint indicated a number of items that were poorly done by Respondent, including but not limited to, installation of the grout work, the kitchen backsplash, and the fireplace tile. 5. ROC Investigator Randy Morris (Investigator Morris) was subsequently assigned to the case. 6. On or about March 8, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, provided proper notice to them, and advised that an onsite review would be conducted at the project site by an ROC investigator on April 8, 2019, at 9:30 a.m. 7. On or about April 8, 2019, ROC Investigator Morris reviewed the work completed by Respondent, to date, and took about 30 photographs. Respondent was not present during the inspection. 8. On or about May 8, 2019, Investigator Morris issued a Directive From The Registrar (Directive) to Respondent because he substantiated Complainant’s allegation that Respondent’s work failed to meet minimum ROC workmanship standards. Specifically, Respondent was ordered to remediate complaint items 1, 2, 3, 4, 5, and 7 via appropriate means. Respondent was put on notice that he had until May 28, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to ARIZ. ADMIN. CODE R4-9-108, and ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32- 1154(E). 9. Following the issuance of the Directive, Jay Hernandez and Estina Velazquez, both co-owners of Respondent, acknowledged receipt of the Directive and responded accordingly. On or about May 28, 2019, Mr. Hernandez and Ms. Velazquez met with Investigator Morris at the ROC’s office in response to the Directive. 10. In an email dated June 5, 2019, Respondent summarized its meeting with Investigator Morris. Respondent indicated that Complainant fired Respondent from the project and told Respondent not to contact her and that she was blocking Respondent.

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Respondent also indicated that Complainant said she would call the police if Respondent went to her house. 11. Prior to June 28, 2019, Respondent provided the ROC with documentation. On or about June 28, 2019, Investigator Morris notified both parties that a Compliance Jobsite Inspection was scheduled for July 2, 2019 at 1:30 p.m. 12. On or about July 2, 2019, Investigator Morris met with Complainant, Mr. Hernandez, and Ms. Velazquez. Investigator Morris determined that complaint items 1, 2, 3, 4, 5, and 7 were not corrected. 13. On July 3, 2019, the ROC issued a Citation to Respondent for alleged violations of ARIZ. REV. STAT. § 32-1154(A)(1), § 32-1154(A)(3), § 32-1154(A)(12), § 32- 1158, and 32-1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108. Respondent was given until July 22, 2019, to respond with its Answer or face discipline pursuant to ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1155. 14. On July 22, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on September 13, 2019. The ROC requested a continuance due to Investigator Morris’ unavailability. The hearing was continued to November 5, 2019. HEARING EVIDENCE 1. At hearing, Investigator Morris testified to his observations of the investigation. Investigator Morris’ investigation began after March 5, 2019. The compliance inspection occurred on July 2, 2019. Investigator Morris determined that the work he observed, between those dates, exhibited poor workmanship. His investigation revealed that Complainant and Respondent had a verbal agreement. Complainant owed Respondent $10,477.00 for work done beyond the scope of the initial verbal agreement. The first time Complainant allowed Respondent in the house since 2018 was May 24, 2019. In his Compliance Jobsite Inspection, Investigator Morris determined that Respondent was not compliant with the Directive. 2. At hearing, Complainant testified on her own behalf. Complainant contacted Respondent after she observed Respondent’s employees working on a tile project at an office building she visited. She obtained Respondent’s contact information

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from them. Complainant initially hired Respondent to do her flooring. Complainant and Mr. Hernandez and Ms. Velazquez developed a close friendship. Complainant requested Respondent to do other projects including kitchen and bathroom backsplash and fireplace tile work. All of the additional projects were verbally agreed upon. 3. On or about October 28, 2019, Complainant paid Respondent $7,980.00 for the flooring. Respondent completed all work, including the additional work, at Complainant’s home on or about November 22, 2018. 4. On or about November 14, 2018, Complainant acknowledged that she hired a different contractor to clean her floors because she did not like the haze that appeared on the floors. She never spoke to Respondent about this nor informed Respondent about this. 5. On or about December 7, 2018, Complainant had a contractor at her house to fix the kitchen backsplash. Complainant contacted Respondent to complain about the kitchen backsplash. Complainant noted that she was happy with the bathroom backsplash. A few days later, Ms. Velazquez went to Complainant’s home. Complainant blamed Ms. Velazquez’s employees for the mess which included bottles of alcohol. 6. On or about December 12, 2018, Complainant hired another contractor to clean the floors with acid wash because Complainant was still not satisfied with the finish on the flooring. Complainant requested the second contractor to return on December 13, 2018, to clean the floors again because Complainant was still not satisfied. 7. Also on or about December 12, 2018, Complainant wanted someone to fix the grout immediately because she was not satisfied with the kitchen backsplash and “had to hire people” to correct it. She did not inform Respondent of this. 8. On or about December 13, 2018, Complainant informed Respondent not to call or text her again or she will call the police. Complainant did not allow Respondent in her home, after that date, and did not remember when Respondent was last in her home. Complainant requested that someone finish the work because she was unable to use her kitchen.

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9. Both Mr. Hernandez and Ms. Velazquez testified on behalf of Respondent. Complainant initially hired Respondent to do her flooring. From the beginning, Complainant was trying to get free labor and materials from Respondent. Respondent worked at Complainant’s home until the end of November 2018. 10. On or about December 7, 2018, Complainant texted Respondent to complain about the kitchen backsplash and the mess that was left in her kitchen. After exchanging text messages, Ms. Velazquez went to Complainant’s home, a couple of days later. She observed the mess and stated that it was not caused by Respondent’s employees. 11. On that same day, Ms. Velazquez observed work done at Complainant’s home that did not recognize as Respondent’s work. When Complainant asked Respondent to fix everything, Ms. Velazquez informed Complainant that she did not know what work to fix because the flooring, kitchen backsplash, and fireplace looked like they had been altered and did not look like the same condition Respondent left it in at the end of November. 12. Due to their close relationship, Respondent contacted Complainant several times after December 10, 2018, to schedule a time to fix the kitchen backsplash. Complainant initially ignored Ms. Velazquez but ultimately responded that she did not want to talk. She further told Ms. Velazquez not to communicate with her. Complainant did not want Respondent back at her house to finish the job and told Ms. Velazquez that Respondent did a “hack job.” 13. On or about December 13, 2018, Complainant emailed Respondent and threatened to call the police if Respondent came to their house. Complainant also emailed “I will see you at the hearing the ROC.” This email came as a surprise to Respondent because their relationship was good until then. Respondent never contacted Complainant because of Complainant’s threats. As of December 2018, Complainant owed Respondent approximately $10,477.00 for an additional six weeks of work completed, not including the kitchen backsplash. 14. Respondent argued that Complainant sabotaged its work because Complainant hired multiple people to “do over” its work. Moreover, the integrity of Respondent’s work was “messed with” and changed. Respondent did not know that RECEIVED 11.25.2019 ROC LEGAL

Complainant hired contractors to fix any of Respondent’s work. Specifically, Respondent did not know contractors were at Complainants home on November 14, 2018, December 12, 2018, and December 13, 2018 to fix the flooring. Respondent observed that the baseboards were installed by another contractor because the materials and workmanship were not different. Respondent did not know who altered the kitchen backsplash and left a mess. 15. In May 2019, as soon as Respondent found out about the Complaint, Respondent contacted the ROC. Respondent denied receipt of the Complaint and Jobsite Inspection Notification. Respondent was next allowed in Complainant’s home on or about May 24, 2019, to take pictures. CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq. 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.3 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. 4 4. 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). 5. ARIZ. REV. STAT. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

3 See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz.

437, 441, 803 P.2d 430, 434 (App. 1990). See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

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“[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” 6. ARIZ. REV. STAT. § 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.” 7. ARIZ. ADMIN. CODE 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.” 8. ARIZ. REV. STAT. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.” 9. ARIZ. REV. STAT. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” 10. ARIZ. REV. STAT. § 32-1158 holds, in pertinent part, that “[a]ny 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 the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. RECEIVED 11.25.2019 ROC LEGAL

4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.” 11. There is evidence that Respondent violated A.R.S. § 32-1154(A)(12). It is undisputed that the parties entered into a verbal contract for work amounting to more than $1,000.00. However, in this case, absent any proof of immeasurable repercussions to Complainant, by Respondent, there shall be no civil penalties imposed on Respondent. 12. The evidence clearly established that Respondent did not abandon the project after receiving payment. Not only did Respondent continue to work on the initial agreed upon work, Respondent performed additional work as directed by Complainant. Complainant admitted she hired multiple contractors to modify and fix work done by Respondent. Complainant did not give Respondent a chance to correct any work she found unsatisfactory. Complainant failed to prove that Respondent abandoned the contract without legal excuse for the abandonment in violation of A.R.S. § 32- 1154(A)(1) 13. The evidence established that some of Respondent’s work was not in conformity with the Registrar’s standards. While Complainant established that Respondent did not complete some of the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108, there was evidence that Complainant hired other contractors without allowing Respondent a chance to finish or correct the work. The other contractors manipulated Respondent’s work when it cleaned the floors with acid wash and modified some of the backsplash tile. The work observed by Investigator Morris during his investigation was work that was performed

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after Respondent stopped working at Complainant’s home and after multiple contractors modified and altered Respondent’s work. 14. Furthermore, Respondent established that it was unable to complete any corrective work due to Complainant’s refusal to let Respondent in her house. Complainant prohibited Respondent from entering her home after she voiced discontent with work allegedly performed by Respondent. She threatened to call the police if Respondent came over. The first time Respondent was allowed back in Complainant’s home was May 24, 2019, a few days before the Directive deadline. 15. Denial of access constitutes a valid justification for failing to comply with a written directive of the ROC. Respondent established by a preponderance of the evidence that Complainant denied it access to the property to allow Respondent to complete the required repairs when Furthermore, Complainant created a hostile environment with her threats. Therefore, because the ROC does not expect nor demand perfection from licensees, Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(22) unless it is given the opportunity to correct said issue. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend Premier Flooring LLC’s License No: 317787, issued by the Registrar, until it has provided to the Registrar, and the Registrar has accepted, a form contract that is in accordance to the requirements set forth in ARIZ. REV. STAT. § 32-1158. It is further recommended that there shall be no civil penalties imposed on Respondent. 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, November 14, 2019. /s/ Antara Nath Rivera Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors