ALJDEC decisions subject to certification as final

2021A-00627-RFA-LS-ROC · Registrar of Contractors · 2022-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Elizabeth Diedrick,

COMPLAINANT

Mexican Tile Restoration Inc.,

License No. ROC 139742,

RESPONDENT

No. 2021A-00627-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 8, 2022

APPEARANCES: Complainant Patricia Elizabeth Diedrick appeared via Google Meet on her own behalf. Dave Richardson appeared on behalf of Respondent Mexican Tile Restoration Inc. Arizona Assistant Attorney General, Sarah Asta appeared via Google Meet representing the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 139742 to Respondent.

On or about February 12, 2021, the Registrar received a Complaint against Respondent from Complainant alleging, that Respondent’s application of sealant on the new saltillo tile caused discoloration and flaking.

As a result of the workmanship complaint, on May 19, 2021, 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).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her September 29, 2021 Decision, Administrative Law Judge Jenna Clark considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(3) and (22) because, “Respondent had failed to complete any repairs and had actually caused more damage to the tiled patio floor.”

On October 14, 2021, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a two day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the damage to the tile and replacement thereof. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $5,949.91. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on June 8, 2022.

Hearing Evidence

The Directive from the Registrar specified that:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 April 26th , 2021.

. . .

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

Compliance Item: 1 - - The sealing of the new Saltillo tile was done poorly as it started to discolor and flake within 30 days of installation. When my husband notified them, he was told that this is what this tile does and we were to just live with it. It is getting worse very very quickly

Investigator’s Observation: I noted that the sealing of the new installed Saltillo tile was flaking off the surface of various Saltillo tiles throughout the covered patio area. I also noted that various tiles were different in color compared to surrounding tiles installed next to them. Apparently the tiles in question were hand painted therefore, the color difference was easily noticeable.

Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

(All errors contained in original).

Doug Ulmer, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Clark’s September 29, 2019, Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulmer concluded that the lowest bid of $13,449.91 for replacement of the tile was appropriate. Mr. Ulmer then reduced this amount by $7,500.00 as that amount was recovered by Complainant from Respondent’s bond.

In his testimony, Mr. Ulmer testified that one bid submitted by Complainant was rejected as it was from an unlicensed contractor.

Mr. Ulmer also testified that to determine if the bid was reasonable he reviewed the paid invoice from Gonzalez Floor Covering in November 2020, and compared that to the August 30, 2021 estimate from Gonzalez Floor Covering to repair the damage.

Complainant testified that while she would have liked to recover the $1,600.00 initially paid to Respondent, she would accept the Registrar’s proposed award.

Respondent testified that it was his belief that the original installation of the underlayment was poor. Respondent testified further that when he came to the project he noticed mortar smears, but thought that it was “ok” and that he could still seal the tile. He testified however, that the sealer failed and the tile turned to powder after he washed of the sealant. Ultimately, he believed that there should be a 50/50 split in the costs to correct the damaged tile.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages: 1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.”

Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.

“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.”

After review of all the evidence, the tribunal concludes that there was an error in the Registrar’s calculation in utilizing the August 2021 estimate from Gonzalez Floor Covering. In that estimate, 750 square feet of underlayment was quoted at a rate of $3.75 per square foot. However, the original paid invoice was for 745 square feet of underlayment. Thus, the bid amount should be reduced by $18.75, as there were 5 square feet less used of underlayment. Therefore for the award provided by the Fund to accurately reflect Complainant’s actual damages, the payout should be $5,931.16. The tribunal also declines to award Complainant reimbursement for the $1,600.00 paid to Respondent.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $5,931.16.

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, June 22, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary