ALJDEC decisions subject to certification as final

2020A-03493-CHC-ROC · Registrar of Contractors · 2021-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stephen Clay Neal and

Savannah Neal

COMPLAINANTS

v.

Velarde Floor Covering, LLC

License No. 186505,

RESPONDENT

No. 2020A-03493-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 2, 2021

APPEARANCES: Complainants Stephen Clay Neal and Savannah Neal appeared on their own behalf. Respondent Velarde Floor Covering, LLC failed to appear. Arizona Registrar of Contractors Investigator Michael Wiskow was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Velarde Floor Covering, LLC (“Respondent”) is the holder of License No. 186505 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about June 4, 2020, Stephen Clay Neal and Savannah Neal (“Complainants”) contracted with Respondent for Respondent to perform tile work in the bathroom and kitchen in Complainants’ home.

On or about July 21, 2020, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Michael Wiskow. After a Jobsite Inspection, Investigator Wiskow 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 August 31st.

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

Compliance Item: 1 - Frame work around both soap insets looks bad.

Investigator’s Observation: The metal frame around the recesses in the

shower are jagged, uneven and grouted poorly.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 2 - Tiles in the shower are high on the corners. Threshold tiles are uneven.

Investigator’s Observation: The tiles in the shower area have several spots where the tiles are cut uneven and have lippage that exceeds

workmanship standards.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 3 - Border around tub has waves in it.

Investigator’s Observation: The border around the tub area is wavy and

uneven.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 4 - Tub border trim pieces and shower have areas of bad grout, uneven grout lines, bad lippage and cut tiles where it should have a factory finish.

Investigator’s Observation: There are multiple areas on the tub and in

the shower that have uneven grout, lippage and improperly cut tiles.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 5 - Uneven tiles at tub outer facing.

Investigator’s Observation: Tub outerfacing wall has tiles with uneven

tiles and lippage that exceed workmanship standards.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 6 - Broken tub faucet.

Investigator’s Observation: The tub faucet is loose as a result of the

respondent removing and replacing to do tile work.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 7 - Glass shower door upper hinge is coming undone.

Door won't close.

Investigator’s Observation: The shower door is loose as a result of the

top hinge pulling out of the wall.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 9 - Drywall at all fixed corners has been damaged.

Investigator’s Observation: The respondent removed and replaced

corner protectors. The new protectors are narrower than the old ones so there are strips on either side that look unfinished. Some protectors are wavy.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 10 - Tile at kitchen island repair is uneven and

ungrouted.

Investigator’s Observation: There is an area on the kitchen island that

has a tile glued in place with no grout. The tile should be installed properly and grouted.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 11 - Tile around island is uneven. Has cracked grout lines.

Investigator’s Observation: The tile/laminate around the island is not

what the customer ordered, it is installed poorly at the outside corners and the grout lines are cracked.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 12 - Weather stripping on the bottom of back door is

damaged from extension cord.

Investigator’s Observation: The weather stripping at the bottom of the

door is dislodged and possibly ripped. Respondent took responsibility for this.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 13 - No dust barrier used. Bathroom and bedroom are

very dusty. The rest of the house is dusty.

Investigator’s Observation: The master bath and bedroom are

extremely dusty. The respondent did not do a reasonable job cleaning after the project was done.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 14 - Paint on the floor

Investigator’s Observation: There is paint on the floor in front of the

vanity and on the glass block.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 15 - Ceiling has grout on it.

Investigator’s Observation: The shower ceiling has grout on it.

Grout should be cleaned off the ceiling.

Contractor should make necessary repairs by appropriate means.

Compliance Item: 16 - Dust and debris in the bathtub and toilet.

Investigator’s Observation: There is dust and debris in the bathtub and

the toilet. Tub and toilet should be free of debris.

Contractor should make necessary repairs by appropriate means.

The following complaint items require no action by the Respondent:

Compliance Item: 8 - Tub is no longer straight of center all around.

Investigator’s Observation: The tub is not straight in the opening,

however the tub was never moved by the respondent.

Following the issuance of the Written Directive, and just prior to the deadline in the Written Directive, Investigator Wiskow contacted Complainants and was informed that Respondent was working on the project, but the items requiring correction were not complete.

Investigator Wiskow conducted a Compliance Inspection on September 9, 2020. Investigator Wiskow’s Compliance Jobsite Inspection Notes indicate the following:

Compliance Items repaired to ROC Workmanship Standards:

Compliance Item #1: Completed

Compliance Item #2: Completed

Compliance Item #3: Completed

Compliance Item #4: Completed

Compliance Item #5: Completed

Compliance Item #9: Completed

Compliance Item #10 Completed

Compliance Item #11 Completed

Compliance Item #12 Completed

Compliance Item #14 Completed

Compliance Item #15 Completed

Compliance Item #16 Completed (Homeowner is getting a new toilet)

Compliance Items not within ROC Workmanship Standards:

Compliance Item #6: Broken tub faucet. Tub faucet is still loose.

Compliance Item #7: Glass shower door upper hinges coming loose.

Shower door hinge is secure, but door does not close properly.

Compliance Item #13 No Dust barrier used. Home is dusty. The home is still very dusty. Every item in the bathroom and bedroom is covered in dust. There was no effort to clean/dust the home.

Thereafter, Investigator Wiskow forwarded the matter to the Registrar’s Legal Department. 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(a); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing of this matter was scheduled to convene on November 12, 2020, at 9:00 a.m. On the date and at the time set for hearing, Complainants appeared on their own behalf. Carlos Velarde, Respondent’s qualifying party and member, appeared on behalf of Respondent. Investigator Wiskow was also present.

Prior to the commencement of the hearing and outside the presence of the Administrative Law Judge, the parties participated in a pre-hearing discussion that resulted in the parties agreeing to resolve the matters remaining in dispute. The Administrative Law Judge issued an Order to the parties requesting a Status Update on or before December 4, 2020.

On December 2, 2020, Complainants filed a Status Update requesting that the matter be re-set for hearing. On December 4, 2020, Respondent filed a Status Update requesting that the matter be re-set for hearing.

On December 4, 2020, an Order setting the matter for continued hearing was issued to the parties. That Order advised the parties that the continued hearing was scheduled to convene on February 2, 2021, and contained a Google Meet link to join the hearing by video or by telephone. It was issued to Respondent’s email address of record that had been used throughout the course of the proceedings and that was contained on Respondent’s Status Update.

Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Wiskow explained the scope of work undertaken by Respondent to include a bathroom remodel including new tile in the shower and on the bathtub surround, plumbing, work on the kitchen island, and installing corner protective pieces. Investigator Wiskow testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes.

Ms. Neal testified that Complainants were compelled to pay a cleaning service, as well as relatives, to clean their home due to the dust left by Respondent. Ms. Neal also testified that the shower door “bangs” because it does not close properly, the faucet is still loose, and Complainants had to purchase a new toilet because Respondent left a residue that could not be removed. Ms. Neal further testified that Respondent installed the hot and cold lines backwards, however, this is not something she discovered until after the Complaint was filed.

Administrative notice is taken of Respondent’s prior License record on February 5, 2021. Such prior License record reflects that Respondent’s License No. 186505 was first issued on June 29, 2003, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled/withdrawn complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainants bear 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, Complainants 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(a).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. Therefore, Complainants 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. 186505 for a period of two (2) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, February 5, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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