ALJDEC decisions subject to certification as final

2019A-01457-CHC-ROC · Registrar of Contractors · 2019-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 3, 2019 APPEARANCES: Complainant Nancy R. Warren appeared on her own behalf. Respondent Elite Granite Fabrication LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Elite Granite Fabrication LLC (Respondent) is the holder of License No. 292330 issued by the Arizona Registrar of Contractors (Registrar). On or about August 27, 2018, Nancy R. Warren (Complainant) signed a contract with Respondent for, among other things, the installation of quartz countertops in her kitchen. On or about March 25, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow issued a written directive to Respondent that provided 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 treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 31, 2019.

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

Complaint Item 1: "Quartz countertops were installed knowing that the kitchen cabinets were not level." (Complainant's description of the countertops being set out of level on both sides of the range.) Complaint Item 2: "Cut out for sink was cut too small & mounted with a 1/8" overhang on the front edge & a 1/2" overhang on the back. sink cannot be adjsted forward because of the tilt out tray in front." (Complainant's description of the undermounted kitchen sink with unequal countertop overhang on the front and back edges.) Complaint Item 3: "After installing the backsplash in the bathroom, he would not caulk the top edge against the wall saying it was the painters job." (Complainant's description of no caulking between the top of the backsplash and the wall in the bathroom for two separate countertops.)

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

All errors in original.

Following the issuance of the written directive, Respondent did not contact Complainant regarding the corrective work to be done. After the deadline in the directive expired, Investigator Johndrow was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). 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 the initial hearing in this matter. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record and its email address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The hearing was ultimately held on September 3, 2019. Complainant testified on her own behalf. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Investigator Johndrow testified as to his observations of the countertops during the jobsite inspection. Investigator Johndrow noted that the countertops were not level on either side of the sink or on one side of the sink and that the sink overhang was uneven front to back. Investigator Johndrow also indicated the top edge of the backsplash was not caulked as it should have been. Complainant testified that the kitchen countertops were not level and the sink was not centered under the countertop. Complainant stated that following the issuance of the written directive from the Registrar, Respondent did not attempt to contact her regarding the necessary repairs. Administrative notice is taken of Respondent’s prior License record on September 18, 2019. Such prior License record reflects that Respondent’s License No. 292330 was first issued on June 6, 2014, and has been under a disciplinary suspension since February 26, 2019. Such prior License record also reflects that there were three open complaints, one of which is the instant matter, and had one prior complaint resulting in discipline against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 292330 for a period of 10 days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 Registrar’s final order, the Registrar 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 40 days from the date of that certification. Done this day, September 18, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] 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