FINACT2019A-02666-CHC-ROC.pdf

2019A-02666-CHC-ROC · Registrar of Contractors · 2020-01-21

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Denise Denomme, Case No. 2019-02666 COMPLAINANT, Docket No. 2019A-02666-CHC-ROC v. Jose Diaz Tile Contractor Inc. FINAL ADMINISTRATIVE License Nos. ROC 067706, 117442. 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 February 26, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

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 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

FINAL NOTE On page 4, line 17 replace “A.R.S. § 32-1101(A)(5)” with “A.R.S. § 32- 1101(A)(7). Dated January 17, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail January 17, 2020 to: Respondent Jose Diaz Tile Contractor Inc 7170 W Oakland St Chandler, AZ 85226 Complainant Denise Denomme 3283 E Thunderheart Trl Gilbert, AZ 85297 Copy sent electronically this same date to: Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-02666 / SA

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 12.30.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Denise Denomme, No. 2019A-02666-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Jose Diaz Tile Contractor Inc., DECISION ROC License: ROC 067706, 117442, RESPONDENT HEARING: December 29, 2019 APPEARANCES: Complainant Denise Denomme appeared on her own behalf. Respondent Jose Diaz Tile Contractor Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Jose Diaz Tile Contractor Inc. (Respondent) is the holder of License Nos. 067706 and 117442 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about April 30, 2018, Respondent provided Denise Denomme (Complainant) quotes for a remodeling project. 3. On or about May 22, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project. 4. The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm 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 August 16, 2019.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.30.2019 ROC LEGAL

You are hereby directed to remedy the following violations by the appropriate means: 1. Complaint Item 11: Contractor never came back to apply sealant on upstairs shower and floor. Complete floor grout sealing at master bathroom toilet area. Complete grout sealing of upstairs hall bath floor if not completed. 2. Complaint Item 14: There is dried wall float mud in the master shower head pipe. Removed dried cement material at threaded location of master shower head pipe. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. On or about August 8, 2019, Investigator Grimm issued an Addendum to the Directive from the Registrar adding an additional item, “Correct location on left overhang of marble top on fireplace mantel that hangs past the drywall,” to be corrected by 5:00 p.m. on August 26, 2019. 6. Following the issuance of the written directive, Respondent did not complete the corrective work. Respondent reported to Investigator Grimm that it was denied access to the property to complete the corrective work. After the deadline in the addendum to the directive expired, Investigator Grimm was notified no corrective work had been performed. 7. 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). 8. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 9. The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on November 5, 2019. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The hearing was continued to 1:30 p.m. on December 9, 2019, and the Office of Administrative Hearings issued notice of the new hearing date to Respondent at its address of record. 10. A hearing was held on December 9, 2019. Complainant testified on her own behalf and submitted six exhibits. Respondent did not request to appear telephonically and RECEIVED 12.30.2019 ROC LEGAL

did not request that the hearing be continued. Although the start of the hearing was delayed minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 11. Investigator Grimm testified that he did not substantiate one of the complaint items, a chip in the upstairs bathroom sink, because he had no way of knowing if the chip was preexisting or who caused the chip to the sink. 12. Complainant testified that the sink at issue was a newly purchased sink and that Respondent installed the sink and the countertop on top of it. Complainant denied that she refused to allow Respondent access to the property, but admitted she needed the work to be performed at times she was available. 13. Administrative notice is taken of Respondent’s prior License record on December 30, 2019. Such prior License record reflects that Respondent’s License No. 067706 was first issued on May 13, 1987, and is current. Such prior License record also reflects that there were no other open complaints or prior resolved/settled complaint against Respondent’s license. Such prior License record reflects that Respondent’s License No. 117442 was first issued on September 19, 1996, and is current. Such prior License record also reflects that there were no open complaints or prior resolved/settled complaint 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. In addition to the items included in the Directive and the Addendum to the Directive, Complainant also established that Respondent was responsible for the chip in the upstairs bathroom sink. Therefore, Complainant RECEIVED 12.30.2019 ROC LEGAL

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 complete 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 Nos. 067706 and 117442 for a period of one day. 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, December 30, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

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.” 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.” RECEIVED 12.30.2019 ROC LEGAL

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors