ALJDEC decisions subject to certification as final

2019A-05763-CHC-ROC · Registrar of Contractors · 2020-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kerrie Lee Draper,

COMPLAINANT

Clayton Family Tile LLC,

License No. 295733,

RESPONDENT

No. 2019A-05763-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 29, 2020

APPEARANCES: Complainant Kerrie Lee Draper appeared on her own behalf. Jeremy Clayton, Owner and Qualifying Party, appeared on behalf of Respondent Clayton Family Tile LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Clayton Family Tile LLC (Respondent) is the holder of License No. 295733 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 12, 2019, Kerrie Lee Draper (Complainant) reached an agreement with Respondent for the demolition and installation of flooring and a primary bathroom shower.

On or about November 19, 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 Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 27, 2020.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

*NOTE: This license is currently suspended and will need to be brought to a current status prior to any work being performed.

DIRECTIVE REQUIREMENTS

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

City of Phoenix permit required for the shower work on this project.

*Obtain permit and receive approval from code compliance governing authority.

Complaint Item 1: Crumbling grout, holes forming in joint lines in master shower – afraid of potential mold growth. Sloppy workmanship in master shower – grout lines, uneven cut tiles, pulled paint off of wall.

*Correct issue of water intrusion behind installed shower tiles. Correct crooked and out of line tiles, lippage of tiles greater than 1/32 inch, sharp corners at knee wall and damaged painted areas.

Complaint Item 2: Grout haze on flooring throughout entire home from not properly cleaning.

*Correct locations of stained floor tiles.

Following the issuance of the written directive, Respondent made no contact with Complainant. After the deadline in the directive expired, Investigator Grimm 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)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Grimm testified that a permit was required for the shower portion of the project and no permit had been pulled on the project. Investigator Grimm also noted that at the time the written directive was issued, Respondent’s license was suspended and Respondent could not have performed the work until the license was current again.

Complainant testified that after the issuance of the written directive, she had no contact from Respondent. Complainant indicated the last date she heard from Respondent was November 15, 2019. Complainant provided photographs of the project demonstrating the issues with the tile work. Complainant stated that following the deadline in the directive, she had the project repaired by a different licensed contractor for a total cost of $10,773.29 and provided the invoice documenting the corrective work. Complainant stated that she sold the house on April 15, 2020.

Mr. Clayton testified that permits are needed only when making changes to the rough plumbing and that, because Respondent did not make any changes to the rough plumbing, Respondent was not required to obtain a permit for the project. Mr. Clayton maintained that the shower was going to have to come out to allow the permit for the plumbing to be issued and inspected, therefore, it would have been pointless for Respondent to perform the corrective work identified in the written directive. Mr. Clayton stated that he took no responsibility for Complainant’s failure to obtain a permit. Mr. Clayton averred that it was impossible for Respondent to comply with the written directive.

Administrative notice is taken of Respondent’s prior License record on July 20, 2020. Such prior License record reflects that Respondent’s License No. 295733 was first issued on December 11, 2014, and is active. Such prior License record also reflects that there were no other open complaints and one prior complaint that was resolved or settled 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).

No evidence was presented that Respondent’s tile work in the shower required a permit. Therefore, the evidence failed to establish that Respondent departed from or disregarded a building code of the state or any political subdivision in violation of A.R.S. § 32-1154(A)(2)(b).

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 evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Mr. Clayton asserted any attempt to perform the corrective work would have been pointless for Respondent to correct the defective shower tiles, Respondent made no attempt to contact Complainant to determine if a permit had been obtained and approved to the point where Respondent could perform the corrective work. 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).

A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

Complainant established that the cost to repair Respondent’s work was $10,773.29.

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. 295733 for a period of three days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $10,773.29 as restitution pursuant to A.R.S. § 32-1156.01.

It is further recommended that if Respondent fails to pay the entire amount of the restitution 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 restitution.

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)(7), 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.

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-137160-45720000Done this day, July 20, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000