ALJDEC decisions subject to certification as final

2020A-03146-CHC-ROC · Registrar of Contractors · 2021-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Standing Rock Construction LLC,

COMPLAINANT

Carefree Floors Inc.

License No. ROC 300727,

RESPONDENT

No. 2020A-03146-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 17, 2021

APPEARANCES: Arthur Luhrs appeared via Google Meet for Complainant Standing Rock Construction, LLC. Brian Kunkel appeared via Google Meet on behalf of Respondent, Carefree Floors, Inc. Chris Fultz, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Carefree Floors, Inc. (Respondent) is the holder of License No. 300727 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 23, 2019, Standing Rock Construction LLC (Complainant) signed a contract with Respondent for installation of tile in a new home build.

On or about June 30, 2020, the Registrar received a Complaint containing two items against Respondent from Complainant alleging poor work with respect to cracks in the tile in the master bathroom and around the fireplace.

The Registrar assigned the complaint to Investigator Chris Fultz. The jobsite inspection was performed on July 27, 2020.

Investigator Fultz then issued a written directive on or about August 3, 2020 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 September 2nd 2020.

. . .

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

Compliance Item: 1 - Family room fireplace tile is cracking. Need replacement tile ordered and paid for by Carefree Floors.

Investigator’s Observation: The tile on the left side of the fire place has a horizontal crack.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Compliance Item: 2 - Mstr. Bath floor tile cracked in 2 places. Need replacement tile ordered and paid for by Carefree Floors.

Investigator’s Observation: There were two tiles cracked at cut corners in the master bathroom.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Following the issuance of the written directive, Respondent informed the Registrar that he had not received notice of the jobsite inspection nor the written directive. Thus, on September 10, 2020, Investigator Fultz conducted another jobsite inspection with Respondent present and re-issued his written directive with a completion date of October 23, 2020.

On November 4, 2020, Investigator Fultz performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Fultz noted that Respondent failed to comply with both Directives, as he noted, “[i]t looks like replacement tile was dropped off but not installed.”

On December 8, 2020, 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).

On or about December 16, 2020, Respondent e-mailed an Answer to the Registrar stating, “I ordered the tile, paid for it, and delivered it to the complainant...I followed your directive to the T.”

On or about February 12, 2021, a Notice of Hearing was issued setting a hearing on March 17, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Fultz testified as to his involvement and the above timeline.

Investigator Fultz testified that it was his belief that Respondent did not comply with the directive. Investigator Fultz testified that the directive was to correct the cracked tiles by appropriate means, not simply deliver new tiles. Investigator Fultz further testified that if there were any questions, Respondent could have contacted him for clarification. However, as Investigator Fultz testified, there was no contact.

Mr. Luhrs testified on behalf of Complainant. Mr. Luhrs was the general contractor on this project and hired Respondent to perform the tile work. Mr. Luhrs testified that he had used Respondent for many jobs prior to this one and never had a problem.

Mr. Luhrs testified that this is the second of three complaints involving Respondent’s work at this project. In the first complaint, Mr. Luhrs alleged that there was a problem with the installation of Limestone on a patio. Mr. Luhrs testified that when those tiles needed to be replaced, instead of waiting for Respondent to complete the same, he hired someone else to do the work, as he was on a deadline. Mr. Lurhs testified that because of this, the complaint was closed by the Registrar. As to the third complaint, that matter is currently set for a future hearing, and will not be discussed at this time.

As to this project with the two areas of cracking, Mr. Luhrs testified that his workers prepared the area by installing wire mesh and epoxy to make sure the sub-floor was in proper shape to minimize cracking.

Mr. Luhrs also testified that he could not complete the work himself as this was not a minor repair, and the installation of the tiles required a lot of precision.

Mr. Luhrs testified that in 20 years in business he has never filed a complaint against a sub-contractor, and believes that Mr. Kunkel is doing all he can to delay repairing the tiles.

Mr. Kunkel testified that he believed he completely followed the directive by purchasing the replacement tiles for three thousand dollars.

Mr. Kunkel testified that based upon the precedent that was set during the course of the first complaint, he believed that Mr. Luhrs would have someone else install the new tile, thus did not believe he had to install the same.

Further, Mr. Kunkel testified that he did not pre-treat the floor, rather Complainant did, and this caused the cracking because he believed the prep work was inferior, but offered no evidence to support this assertion.

Finally, Mr. Kunkel testified that he believed that Mr. Luhrs filed the complaint to “stick it to him”.

Administrative notice is taken of Respondent’s prior License record on March 18, 2021. Such prior License record reflects that Respondent’s License No. 300727 was first issued on August 26, 2015, and reflects that there is 1 open complaint, namely the present complaint.

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. Tiles were cracked in the master bathroom and around the fireplace. 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 failed to complete the corrective work following the Directive being issued. The Tribunal does not believe that a precedent had been set based upon the first complaint that Respondent did not need to repair the tiles. Further, the directive was based upon a violation of the workmanship statute, and not based upon faulty or defective tiles. If Mr. Kunkel was unsure if he actually needed to install the tile, he could have reached out to Investigator Fultz, but he failed to do so. 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. 300727 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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 30 days from the date of that certification.

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-137160-45720000Done this day, March 26, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000