FINACT2019A-04107-CHC-ROC.pdf

2019A-04107-CHC-ROC · Registrar of Contractors · 2020-02-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Rushda Mumtaz, MD, Case No. 2019-04107 COMPLAINANT, Docket No. 2019A-04107-CHC-ROC v. B M A Enterprises Inc., FINAL ADMINISTRATIVE DBA: Amcor Carpets, DECISION AND ORDER License No. ROC 155818,

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 March 17, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 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 5 add “11263” after “proposal.” On page 4, line 14 replace “June 6, 2019” with “June 28, 2019”. On page 8, line 19, replace “A.R.S. § 32-1101(A)(5)” with “A.R.S. § 32- 1101(A)(7).” Dated February 6, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail February 6, 2020 to: Respondent B M A Enterprises Inc DBA: Amcor Carpets PO Box 93127 Phoenix, AZ 85070

Complainant Rushda Mumtaz 6505 E Cactus Wren Place Paradise Valley, AZ 85253 Copy sent electronically this same date to: Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-04107 / VE

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 1.14.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rushda Mumtaz, MD, No. 2019A-04107-CHC-ROC

ADMINISTRATIVE LAW JUDGE COMPLAINANT, DECISION v.

B M A Enterprises Inc., DBA: Amcor Carpets, License No. ROC 155818,

RESPONDENT.

HEARING: December 20, 2019, at 8:30 a.m. APPEARANCES: Rushda Mumtaz, MD (“Complainant”), appeared on her own behalf; B M A Enterprises Inc. DBA: Amcor Carpets was represented by Charles (Carlos) Slack-Mendez, Esq., Slack-Mendez Law Firm.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public

website,1 on or about June 12, 2000, the Registrar issued License No. ROC 155818, for

Specialty Dual CR-8 Floor Covering Contracting to Respondent. Respondent’s officer is

William Joseph Ciccone. 2. On or about August 13, 2019, Complainant filed a complaint with the Registrar, alleging that Respondent had performed poor work, had abandoned its contracts to install tile in the bathrooms and on the floors of Complainant’s house at 6505 E. Cactus Wren Place, Paradise Valley, Arizona 85253. According to the complaint, Complainant had

See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). RECEIVED 1.14.2020 ROC LEGAL

paid Respondent $49,335.17 of the $68,462.09 total amounts of the contracts. Complainant also alleged that Respondent had committed embezzlement. 3. The matter was assigned to the Registrar’s Investigator Steve Klein for investigation. On September 13, 2019, Investigator Klein performed a jobsite inspection. On that same date, Investigator Klein on behalf of the Registrar issued a directive, in relevant part as follows: DIRECTIVE REQUIREMENTS

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

Complaint Item 2: Did not finish tiles in bathrooms Verified bath shower surrounds, floor tile and tops incomplete. Complaint Item 3: Floor not completed Verified all living areas, flooring was never started. Complaint Item 5: Abandonment of job. Respondent was hired to install tile flooring throughout, shower surrounds and bath tops. Respondent received deposit, started the baths then abandon the job. Abandonment, 32-1154 (A)(1) Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: Contractor delayed work This item represents incomplete work, not poor work and does not implicate a workmanship issue for me to report on at this time. Complaint Item 4: Tile installation is poor

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I did not address poor installation due to the job being incomplete. This item represents incomplete work, not poor work and does not implicate a workmanship issue for me to report on at this time.2 The deadline for Respondent to comply with the directive was 5:00 p.m. on October 3, 2019. 4. After Complainant informed Investigator Klein that Respondent had not performed any work to comply with the directive, Investigator Klein referred the matter to the Registrar’s Legal Department. On October 7, 2019, the Registrar issued a Citation against Respondent’s contractor’s license charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, and 32-1154(A)(22). 5. On or about October 22, 2019, Mr. Ciccone filed a written answer to the Citation, denying that any cause to suspend or revoke Respondent’s contractor’s license. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. A hearing was held on December 20, 2019. Complainant testified on her own behalf and submitted seventeen exhibits. Respondent presented Mr. Ciccone’s testimony. Investigator Klein also testified. HEARING EVIDENCE 7. On or about April 8, 2019, Complainant accepted Respondent’s proposal 11139 to tear out and existing tile and to install tile in the four guest bathrooms and master bath at Complainant’s house for a contract price of $28,450.00.3 Complainant made several payments to Respondent pursuant to its proposal.4 8. Complainant testified that Respondent performed the demolition, but failed to complete installation. Its crews started and stopped several times on the job. Complainant testified that she dealt with Mr. Ciccone’s son, Albert, on the jobs.

2 The Registrar’s electronic file at 13-14. See Complainant’s Exhibit 1. 4 See Complainant’s Exhibit 2. 3 RECEIVED 1.14.2020 ROC LEGAL

9. On or about May 16, 2019, Complainant accepted Respondent’s proposal 11222 to provide additional floor tile only without installation, for a contract price of $9,612.09; on or about June 29, 2019, Complainant accepted Respondent’s proposal 11256 to provide additional tile and related materials for the contract price of $901.00; and on or about July 5, 2019, Complainant accepted Respondent’s proposal to provide additional tile and related material for the contract price of $1,636.00.5 Complainant made several payments to Respondent pursuant to its proposals.6 10. Complainant testified she signed the new proposals, even though Respondent had not completed the work described in its earlier proposals and she was dissatisfied with the pace of Respondent’s work, because she was told that if she agreed Respondent could perform more work, it would devote larger crews to her projects. Complainant testified that Respondent only provided 80% of the tile required by the proposals. 11. On or about June 6, 2019, Complainant accepted Respondent’s proposal 11255 to install 3461 square feet of porcelain tile that she provided in her choice of design for a contract price of $17,500.00.7 Complainant made a payment to Respondent pursuant to its proposal.8 12. Complainant testified that she continued to accept Respondent’s proposals and to pay it more money because Albert said Respondent was experiencing financial difficulties and had spent the money she had paid on other jobs. Complainant explained that she became a physician because she wanted to help people, but that she now feels that Respondent used her. 13. On or about July 5, 2019, Complainant accepted Respondent’s proposal 11262 to provide an additional 2737 square feet of tile only.9 Complainant made a payment to Respondent pursuant to its proposal.10

See Complainant’s Exhibit 3. 6 See Complainant’s Exhibit 4. See Complainant’s Exhibit 5. 8 See Complainant’s Exhibit 6. See Complainant’s Exhibit 7 10 See Complainant’s Exhibit 8. 4 RECEIVED 1.14.2020 ROC LEGAL

14. By mid-August 2019, Respondent stopped working on the project. Complainant sent a text threatening to apply 10% daily liquidated penalties for the amounts owed.11 15. Complainant testified that Respondent sent Lunas Tile out to do the work, but did not pay Lunas Tile, although she promised Lunas Tile that she would make sure they were paid.12 Lunas Tile left the job on August 5, 2019, after Respondent’s check was dishonored by its bank for insufficient funds. Complainant then filed the complaint with the Registrar. 16. Investigator Klein testified that Respondent did not appear at the September 13, 2019 jobsite inspection. On the day of the inspection, Respondent called him and stated that it wanted to complete the job, but that it was having problems. 17. Investigator Klein was unable to estimate what percentage of the work on Respondent’s various proposals had been completed because he was not sure what work Respondent had contracted to perform. 18. Investigator Klein testified that another contractor had come in and was doing work. Respondent did not inquire at the hearing about whether the other contractor was completing Respondent’s scope of work. 19. Complainant testified that work is still incomplete.13 She is a doctor and should not have to waste time on contractors who failed to show up and on hearings. 20. Complainant denied that she ever accused Mr. Ciccone of theft. She acknowledged that she called the Paradise Valley Police on one occasion, explaining that she felt threatened when Respondent’s workers came out to demand that she pay more money while she was alone at her house. Complainant stated that police asked the workers to leave the property and told her to file a complaint with the Registrar. The record does not contain the date of the police report and it was not submitted. 21. Mr. Ciccone testified that he has been a licensed contractor for 20 years. Mr. Ciccone testified that the situation with Complainant became unbearable because

11 See Complainant’s Exhibit 12. See Complainant’s Exhibit 13. 13 See Complainant’s Exhibit 16. 5 RECEIVED 1.14.2020 ROC LEGAL

her home had become such a hostile work environment for Respondent’s crew. Mr. Ciccone testified that Complainant would not let Respondent’s crew do anything until all the tile was on site and that Complainant threatened to kill Albert. Mr. Ciccone testified that he did not feel safe.14 Mr. Ciccone testified that Complainant said that, since she was a high-powered doctor, she could make his life miserable and demanded her money back. 22. Mr. Ciccone testified that Complainant demanded that he pay $30,000 immediately, which he was unable to do, and refused to accept payments. 23. Mr. Ciccone testified that Complainant wrote documents that she made him sign.15 Mr. Ciccone testified that Respondent’s crews did not want to work on Complainant’s project because she was so difficult. Mr. Ciccone testified that Respondent’s installers do not want to return to the job. Mr. Ciccone testified that he is taking medication for the stress that Complainant caused him to suffer. 24. Mr. Ciccone testified that Complainant told him numerous times that Respondent was going to lose its license and, whenever he showed up at the jobsite, started screaming at him. Mr. Ciccone testified that the night before Respondent’s workers were due at the jobsite, Complainant would send a text, saying that if the workers were 5 minute late, she would start docking their pay. Mr. Ciccone testified that Complainant wanted to see Respondent fail. 25. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior record as shown on the Registrar’s public website on this date. Respondent’s license was current and in good standing. No discipline had ever been taken against the license on the current record and 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.16

14 Complainant is a small woman, about 5’ tall and 100 lbs. See Complainant’s Exhibit 10. 16 See A.R.S. § 32-1154(A). 6 RECEIVED 1.14.2020 ROC LEGAL

2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.17 Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.18 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”19 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.”20 4. A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” (Emphasis added). Respondent did not dispute that the project remains incomplete. 5. Therefore, the only matter in dispute is whether Complainant prevented Respondent from completing the project or complying with the directive. Construction is not a perfect art and, generally, homeowners are required to allow contractors access to attempt to complete and correct their work before the Registrar will suspend or revoke the contractor’s license. A homeowner’s failure to provide reasonable access for a contractor to comply with a directive issued by the Registrar is an affirmative defense that the contractor bears the burden to establish. 6. Respondent established that Complainant is a difficult client. But this did not stop Respondent from offering successive proposals for additional materials or scopes of work or from accepting Complainant’s payments pursuant to the proposals. Licensed

17 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). 18 See A.A.C. R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 7 RECEIVED 1.14.2020 ROC LEGAL

contractors are expected to have the business acumen to deal with difficult clients and to protect themselves from unreasonable clients from the terms that they include in their form proposals. 7. Respondent did not present any evidence that Complainant unreasonably prevented it from completing the scope of work on the various proposals or prevented it from complying with the Directive. Therefore, Complainant established that Respondent abandoned the project and failed to take appropriate corrective action to comply with the directive, thereby furnishing cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).21 RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent B M A Enterprises Inc. DBA: Amcor Carpets’ License No. ROC 155818 shall be suspended for three (3) days. It is further recommended that the Registrar require Respondent to 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 Registrar’s 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 five days from the date of that certification. Done this day, January 14, 2020. /s/ Diane Mihalsky Administrative Law Judge 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.” 8 RECEIVED 1.14.2020 ROC LEGAL

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

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