ALJDEC decisions subject to certification as final

2019A-02666-CHC-ROC-RHG · Registrar of Contractors · 2020-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Denise Denomme,

COMPLAINANT

Jose Diaz Tile Contractor Inc.,

License No. 067706, 117442,

RESPONDENT

No. 2019A-02666-CHC-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 18, 2020

APPEARANCES: Complainant Denise Denomme appeared on her own behalf. Jose Diaz, Owner and Qualifying Party, appeared on behalf of Respondent Jose Diaz Tile Contractor Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Jose Diaz Tile Contractor Inc. (Respondent) is the holder of License Nos. 067706 and 117442 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 30, 2018, Respondent provided Denise Denomme (Complainant) quotes for a remodeling project.

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.

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.

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.

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,” with a new deadline of 5:00 p.m. on August 26, 2019.

On or about August 15, 2019, Complainant emailed Investigator Grimm asking what would happen when Respondent failed to comply with the August 16, 2019 deadline.

At approximately 4:45 p.m. on August 16, 2019, Respondent called Complainant regarding the corrective work.

On August 19, 2019, Complainant issued a letter to the Arizona Attorney General, with a copy to Jeffrey Fleetham, in which she requested a postponement of the matter because Respondent failed to complete the work in the initial directive by August 16, 2019.

Complainant never returned Respondent’s call regarding performing corrective work. Therefore, Respondent did not complete any 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 asked Complainant via email if the corrective work had been performed. Complainant responded that she found his email “interesting” because she sent the August 19, 2019 letter requesting a postponement. Complainant asserted that Investigator Grimm was siding with Respondent.

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).

At the initial hearing in this matter, Respondent did not appear. Based on the evidence presented, the Administrative Law Judge found in favor of Complainant and that decision was adopted by the Registrar.

Respondent requested and was granted a rehearing in the matter.

At the rehearing, Investigator Grimm testified as to his actions and observations in handling the complaint.

Complainant denied that she refused to allow Respondent access to the property, but stated that she did not return Respondent’s August 16, 2019 call because, after she issued her August 19, 2019 letter putting the matter “on hold”, there was no need to contact Respondent. When asked if anyone informed her that she had the authority to put the matter “on hold”, Complainant admitted that no one had told her she could do that. Complainant blamed Investigator Grimm for not informing her that the deadline date in the addendum directive could have any effect on the deadline date in the initial directive. Complainant accused Respondent of “redlining” because most of Respondent’s work was in Fountain Hills and he sent his worst crew to her home in Ahwatukee.

Mr. Diaz testified that everything on the job was going fine until he tried to collect the monies owed, at which point Complainant refused to talk to them. Mr. Diaz stated that he called Complainant to set up a time to do the corrective work at least six different times from August 16, 2019, and August 29, 2019, but Complainant never answered the phone or returned his calls.

Administrative notice is taken of Respondent’s prior License record on June 2, 2020. 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 or prior complaints 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 other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

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.

The Registrar neither expects nor demands perfection from its licensees. Accordingly, contractors must be afforded an opportunity to perform corrective work to address any identified workmanship issues.

The credible evidence offered at hearing established Respondent attempted on numerous occasions to arrange a time to complete the work required in the written directives and that Complainant would not respond to Respondent. Because Complainant did not allow access for Respondent to comply with the written directive, Respondent had valid justification for its failure to comply with the written directives. Accordingly, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Denise Denomme’s complaint in Case No. 2019-02666 against Respondent Jose Diaz Tile Contractor Inc.’s License Nos. 067706 and 117442 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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.

-54864001

001

-137160-45720000Done this day, June 4, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000