ALJDEC decisions subject to certification as final

2020A-00689-CHC-ROC · Registrar of Contractors · 2021-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bill Snyder,

COMPLAINANT

Aztec Marble and Granite LLC,

License No. ROC 230605,

RESPONDENT

No. 2020A-00689-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 25, 2021

APPEARANCES: Complainant Bill Snyder appeared on his own behalf. Casey Naylor, Owner and Qualifying Party, appeared on behalf of Respondent Aztec Marble and Granite LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Aztec Marble and Granite LLC (Respondent) is the holder of License No. 230605 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 1, 2018, Bill Snyder (Complainant) signed a contract with Respondent for the fabrication and installation of countertops.

On or about February 10, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Albert Bernal. On or about March 23, 2020, after a jobsite inspection, Investigator Bernal issued a written directive with a deadline of May 1, 2020.

On or about June 2, 2020, Investigator Bernal issued an amended 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 June 30th, 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 reasons, 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.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - It has been over a month since our last contact with Aztec. Regrettably we now make this ROC referral. Starting the Thursday before Easter 2019, we've been unable to complete the countertops in our kitchen and dining area in a workman like manner. For example, the two perimeter sink openings have been incorrectly cut three times notwithstanding the templates, fabrication instructions, and physical sinks having been provided.

Investigator’s Observation: I noted the cutout in the sink in the bar area was the wrong size. Also the sink in the kitchen area cutout was the wrong size therefore, the accessories (crate strainer/colander) did not fit any of the sinks correctly. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - 7. Most recently -- over the Thanksgiving timeframe – the main island bar top was delivered incorrectly sized with electrical outlet holes misdrilled. Aztec immediately acknowledged this fabrication failure and to their credit returned after Christmas with a second attempt at fabrication of the island bar top[.] Unfortunately, this attempt was also a failure.

Investigator’s Observation: I observed the thickness of the counter top installed on the main island (kitchen area) was 2" thick. Contract shown to me listed the counter top measurements at 2 1/2" thick. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, and manufacturers installation instructions

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

All errors in original.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Bernal was notified not all of the corrective work had been performed.

On or about December 14, 2020, Investigator Bernal conducted a compliance jobsite inspection at which time he observed that the thickness issue had been corrected, but the sink size had not been addressed.

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(B); and A.R.S. § 32-1154(A)(22).

Investigator Steve Nelson testified at the hearing that Investigator Bernal was no longer employed by the Registrar. Investigator Nelson indicated he understood the parties had agreed to modify the accessory items to fit the sink rather than to replace the countertop in the sink area. Investigator Nelson stated that if the parties had agreed to a resolution of the issue, then the matter should be resolved quickly.

Complainant testified that the parties had agreed to resolve the sink issue with the adjusted accessories, but Respondent had failed to deliver on that agreement in the intervening months.

Mr. Naylor testified that he had the completed accessories ready for delivery, but had not yet delivered them.

Administrative notice is taken of Respondent’s prior License record on July 9, 2021. Such prior License record reflects that Respondent’s License No. 230605 was first issued on March 9, 2007, and is active. 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(B).

The evidence established that Respondent did not attempt to 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).

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. 230605 for a period of three days.

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.

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-137160-45720000Done this day, July 12, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000