ALJDEC decisions subject to certification as final

2020A-00095-CHC-ROC · Registrar of Contractors · 2020-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ashley Nicole Johnson Brown,

COMPLAINANT,

v.

Top Onyx LLC,

dba Premier Granite & Fabrication,

License No. ROC 309537, 328003,

RESPONDENT.

No. 2020A-00095-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 10, 2020 at 9:00 AM and August 03, 2020 at 9:00 AM.

APPEARANCES: Ashley Nicole Johnson Brown (“Complainant”) appeared on her own behalf with Jack Grimm as a witness. Kevin Estevez, Esq. appeared on behalf of Top Onyx LLC (“Respondent”) with DeWayne Lewis and Sergio Rodriguez as witnesses. Richard Williams observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On November 04, 2016, the Registrar issued License No. 309537 for Specialty Dual CR-60 Finish Carpentry contracting to Respondent. On March 05, 2020, the Registrar issued License No. 328003 for Specialty Dual CR-48 Ceramic, Plastic and Metal Tile contracting. Respondent’s addresses of record for the licenses are 2214 N. 24th St. Phoenix, Arizona 85008-2716. Dewayne Lewis is listed on both licenses as the Qualifying Party/Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 309537, as reflected on the Registrar’s public website on August 03, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through November 30, 2020. Although the license has not been previously disciplined, the record reflects that there have been 2 resolved or otherwise settled cases on the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $6,750.00 surety bond for the license issued through RLI Insurance Company, effective October 14, 2016, of which all funds are currently available.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 328003, as reflected on the Registrar’s public website on August 03, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through March 31, 2022. The license has not been previously disciplined. There are no open complaints against this license. Respondent has a $6,750.00 surety bond for the license issued through RLI Insurance Company, effective February 21, 2020, of which all funds are currently available.

On January 06, 2020, the Registrar received a complaint filed by Complainant alleging poor work performance on a residential tile installation project.

On January 16, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on February 12, 2020, at 10:00 a.m.

On February 12, 2020, Registrar investigator Jack Grimm (“Investigator Grimm”) inspected the work that had been done on the project to date and took 18 photographs of the project. When he was finished, Investigator Grimm drafted Jobsite Inspection Notes.

On March 02, 2020, Investigator Grimm issued a Directive from the Registrar to Respondent because he substantiated Complainant’s allegation that the work Respondent had done on the project failed to meet minimum workmanship standards. Respondent was put on notice that he had until 5:00 p.m. on March 19, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On March 24, 2020, the Registrar issued a Citation and Complaint to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until April 08, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On April 08, 2020, the Registrar received Respondent’s Answer whereby denied that its work on Complainant’s project failed to meet statutory minimum workmanship standards. Respondent alleged that it repaired every tile Complainant identified for remediation over the course of two days, and argued that Complainant tagged additional tiles for repair just prior to the parties’ compliance jobsite inspection which effectively robbed Respondent of an opportunity to correct prior to inspection. Respondent accused Complainant of denying access to the project site, and further argued that it was not responsible for Complainant’s choice of low-quality tile.

On April 13, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 10, 2020. Per the May 08, 2020, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”).

Hearing Evidence

Complainant testified on her own behalf, called Investigator Grimm as a witness, and submitted 1 exhibit into the record. Respondent called DeWayne Lewis and Sergio Rodriguez as witnesses and submitted 33 exhibits into the record. The Registrar’s agency file and Notice of Hearing were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns newly built residential property located at 5750 W T Ryan Lane Laveen, Arizona 85339, which she purchased in November of 2019.

Dewayne Lewis is Respondent’s owner and primary agent.

Complainant’s significant other, Richard Williams, and DeWayne Lewis were long-time friends. Because of his existing friendship with Mr. Williams, Mr. Lewis agreed to remove Complainant’s existing flooring and install tile of her choice at cost.

On or about November 06, 2019, Complainant and Respondent entered into a residential contractual agreement whereby Complainant agreed to pay Respondent the sum total of $10,112.81 in exchange for tile installation at the aforementioned property.

On or about November 12, 2019, Complainant issued a $5,000.00 down payment to Respondent for the underlying project.

Complainant selected 12 x 24 porcelain tile in Tarsus Gray II for the lower level of the home. The tile, which was not made of natural stone, was manufactured with a rectified edge and not designed to blend in with grout. Complainant selected this tile for the project, in part, because it was relatively inexpensive.

Prior to commencing the project, Respondent took note that Complainant’s existing flooring was not flush and showed signs of lippage. Respondent informed Complainant that her subfloor was likely in need of leveling and repair, but that he could not confirm his suspicions until demolition was complete.

On or about November 14, 2019, work on the project began.

After demolition was complete, Respondent noted that the mortar in Complainant’s subfloor was “very bad,” “unevenly poured,” and inconsistent in multiple areas.

Complainant agreed to move forward with tile installation.

Respondent used LASH® spacers to assist with leveling the tile.

On or about December 09, 2019, the project was completed. Respondent issued its final invoice to Complainant. The parties conducted walkthrough and identified approximately 18 tiles that needed to be fixed. At that time, Complainant used strips of tape to mark tiles identified for repair(s).

From December 06, 2019, through December 09, 2019, Respondent performed tile remediations at the project site.

On December 13, 2019, Respondent had Complainant’s home professionally cleaned.

On December 17, 2019, Complainant notified Respondent that she was unsatisfied with Respondent’s workmanship on the project. Complainant opined that Respondent’s repair attempts were unsatisfactory, and argued that his work needed to be redone by another licensed contractor. Complainant requested a refund of her $5,000.00 deposit.

On December 20, 2019, Respondent replied to Complainant’s refund request by offering to perform Complainant’s outstanding remediation requests “after the holidays.” Specifically, Respondent notified Complainant that repairs would be scheduled for the week of January 06, 2020.

On December 31, 2019, Complainant mailed her workmanship complaint to the Registrar.

Between February 05, 2020, and February 09, 2020, the parties attempted to schedule a time for Respondent to perform remediations prior to the Registrar’s jobsite inspection, whereby the agreed to meet on February 10, 2020. On February 10, 2020, the parties did another walkthrough and Complainant placed pieces of tape on tiles she opined required repair(s).

When Respondent reported for the jobsite inspection on February 12, 2020, there were more tiles marked for remediation than there had been the day prior.

The Registrar’s subsequent Directive of March 02, 2020, instructed Respondent to remediate workmanship issues identified on the lower level of Complainant’s residence. The Directive also specifically warned Respondent that he was not permitted to perform or hire contractors to perform work that was outside the scope of his license, and further noted that ROC License No. 309537 was not the proper scope for floor tile.

On March 09, 2020, Respondent asked Complainant to pick date(s) that week for Respondent to perform remediations. On March 10, 2020, Complainant responded and asked Respondent to perform repairs on March 14, 2020. Respondent, who did not schedule work on weekends, agreed, but also requested 2 additional days through March 18, 2020, to complete the repair work.

On March 18, 2020, the Investigator Grimm issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on March 20, 2020, at 1:30 p.m.

On March 20, 2020, Investigator Grimm noted that although Respondent replaced at least 35 tiles, there was still lippage present on over 12 tiles and grout was missing or irregular in observable places. During the inspection Complainant alleged for the first time that Respondent had installed the incorrect color tile in the lower level of her home.

On March 23, 2020, Investigator Grimm escalated Complaint No 2020-00095 to the Registrar’s legal department with a Citation Recommendation.

In closing, Complainant argued that every other one of Respondent’s clients received a “dream home” and she was left with an “unfinished job.” Complainant noted that she was not desirous of additional remediation attempts from Respondent, and instead wished to have another licensed contractor remove and replace Respondent’s work.

In closing, Respondent argued no discipline was warranted in this case because Investigator Grimm incorrectly and inappropriately applied the wrong lippage standard. Respondent argued that stone tiles and ceramic/porcelain tiles do not have the same installation standards or the same allowable variances for lippage, and if the appropriate standard had been applied in the first place Respondent would not have been cited by the Registrar. Respondent further argued that no discipline was warranted because Complainant’s substrate was defective. Respondent opined that Complainant could not be satisfied and had evinced her intent to be unreasonable when she requested a refund on a contract she had not paid in full.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Ariz. Rev. Stat. § 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.”

Ariz. Admin. Code 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.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this case are not in dispute.

It is undisputed that Complainant contracted with Respondent for a $10,112.81 residential tile project that she paid $5,000.00 toward. It is also undisputed that Respondent’s work on the project fell below the Registrar’s minimum workmanship standards, in large part, because Complainant’s subfloor was not level and no overt action had been taken by Respondent to level it prior to installing the new tile at issue. It is further undisputed that the Registrar’s post investigative Directive required Respondent’s full compliance by March 19, 2020, and that Respondent did not timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely and completely remediate all complaint action items outline in the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that although Respondent made numerous attempts to correct the workmanship issues on the underlying project, he did not complete all required remediations so as to timely adhere to the Registrar’s Directive. There are no affirmative defense(s) in the record which overcome or outweigh the evidence established by Complainant in this matter.

Here, Respondent was fully aware of the condition of Complainant’s subfloor prior to beginning any tile installation. Once Respondent began installation he accepted the condition(s) of the floor, and was responsible for ensuring that his final product, at a minimum, complied with the Registrar’s workmanship standards. The issue(s) Respondent raised regarding the nature of the tile, or the allowable lippage thereof, is tenuous and immaterial in the face of Respondent’s admission that his work on the project commenced without significantly addressing the state of Complainant’s substrate. Simply notifying Complainant and obtaining her consent was insufficient. Moreover, Respondent’s use of LASH® spacers do not satisfy his duties and obligations as a licensee.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent Top Onyx LLC, ROC License No. 328003, be suspended for two (2) days

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, August 21, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors