ALJDEC decisions subject to certification as final

2021A-01848-CHC-ROC · Registrar of Contractors · 2021-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vicki Ross ,

COMPLAINANT

Riedlinger Contracting LLC

License No. ROC 291131,

RESPONDENT

No. 2021A-01848-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 24, 2021

APPEARANCES: Vicki Ross on her own behalf; Matt Riedlinger for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On August 5, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 24, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Riedlinger Contracting LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 291131 issued by ROC. Matt Riedlinger, Respondent’s owner, appeared and testified for Respondent.

Complainant Vicki Ross appeared and testified on her own behalf and also presented the testimony of Susanne Rothwell.

Ms. Ross was working with John Loomer who contacted Respondent regarding the installation of new counter tops in several locations at Ms. Ross’s home.

Mr. Loomer is not employed by or associated with Respondent.

Ms. Ross, Mr. Loomer and Mr. Riedlinger met at a supply house where they looked at and discussed slabs. A salesman also participated in that discussion.

Ms. Ross agreed to purchase three slabs of Paramount Quartzite that were intended to be used for some of the countertops. Ms. Ross was also going to look at remnant pieces at Respondent’s facility, with that piece to be used for a playroom or game room counter top.

Before the parties met at the supply house, Mr. Loomer had made templates. At the supply house, Mr. Loomer and Ms. Ross positioned the templates on the slabs and eventually settled on an agreeable layout. Mr. Riedlinger then marked the slabs.

Within a few days, Ms. Ross provided Mr. Loomer a check to pay for the three Quartzite slabs that were then sent to Respondent’s facility.

Respondent cut the pieces following the markings that had been agreed to and placed on the slabs at the supply house.

Respondent installed the Quartzite countertops. As of the hearing date, Ms. Ross had not selected a piece for the playroom and that work had not been completed.

Ms. Ross was dissatisfied with the work and on August 26, 2021 she filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

ROC investigator Steve Klein conducted a jobsite inspection on June 3, 2021. No representative for Respondent was present at that inspection.

ROC issued to Respondent a Directive that was undated. Mr. Klein testified that the Directive was issued on June 3, 2021. ROC’s Directive provided in part:

.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 7-2-21 .

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DIRECTIVE REQUIREMENTS

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

Complaint #1 Counter top job is below standards.

Inspector’s Observation: Verified poor seams at bull nose edges. Counter top isn’t level. Chip on island top and poor seams at bull nose edges.

Complaint #2 Slab seams and colors don’t match on L shape counter with sink and cook top

Inspector’s Observation: Verified L top surface design pattern at seam is mismatched.

Complaint #3 Second counter in family room never installed.

Inspector’s Observation: Verified counter hasn’t been installed.

• Respondent shall complete project per original contract agreement, plans and specifications.

Respondent performed some work, but did not attempt to modify the color of the countertop at the L.

On July 9, 2021, Mr. Klein conducted a compliance jobsite inspection. Mr. Klein’s opinion was that none of the items identified in ROC’s Directive had been corrected.

ROC issued to Respondent a Citation dated July 13, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

At the hearing, Mr. Klein testified as to his opinion that the seam of the L shaped counter was itself not deficient, but there was too much variation in the color of the two pieces. Mr. Klein acknowledged that ROC has no written standard regarding the color of two pieces of stone and that the color natural stone does vary, but in his opinion these two pieces were not within acceptable limits.

Mr. Klein testified to the effect that a countertop was not level as of his compliance jobsite inspection, but there was no evidence adduced showing how far out of level it was, nor was there any evidence as to how much deviation, if any, is allowable.

Ms. Rothwell is an Arizona Registered architect and has been since 1982 or 1983. She has worked on an estimated 100 countertops. Ms. Rothwell is a friend of Ms. Ross and was not being paid for her testimony.

Ms. Rothwell’s opinion was that the two pieces at the L did not meet industry standards because the colors did not match.

Quartzite has a lot of “movement” or natural variation in color.

Mr. Riedlinger testified to the effect that Respondent was hired to fabricate the pieces and that it cut the pieces in conformity with the markings and layout that Ms. Ross and Mr. Loomer had agreed to at the supply house.

Ms. Ross testified to the effect that it was not fair to hold her accountable for the color difference based on the interaction at the supply house and to the effect that she should have been invited to look at the layout in Respondent’s shop before he actually cut the slabs.

Regarding the counter top for the playroom or game room, Ms. Ross went to Respondent’s shop to look at remnants, but Mr. Riedlinger was not there. There were however, employees present at that time, but Ms. Ross did not pick a piece for use in the playroom/game room.

Subsequently, Mr. Riedlinger sent Ms. Ross an email showing that he was preparing to cut four slabs, the remnants of which might or might not be suitable. Ms. Ross did not understand that Mr. Riedlinger’s email was intended to be an invitation for her to come look at those slabs and she did not do so. Emails in ROC’s administrative record show that Ms. Ross was expecting Respondent to provide her with additional photographs of these slabs, but it did not do so.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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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. 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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

The scope of the hearing is limited to issues that are properly noticed. Ariz. Rev. Stat. § 41-1092.07(F)(6). Consequently, any alleged workmanship violations that were not raised in the complaint and subject to ROC’s inspection are beyond the scope of this hearing. See also Ariz. Rev. Stat. § 32-1155(D)(1)(requiring notice and an opportunity to inspect).

The preponderance of the evidence shows that Respondent cut the slabs in conformity with the layout and markings that Ms. Ross verbally approved at the supply house. Consequently, although the preponderance of the evidence also shows that the colors of the pieces at the L are a poor match, Respondent did not violate the workmanship standards.

It has not been proven by a preponderance of the evidence that one countertop is not level because there was no evidence as to the purported degree of any such deficiency and there was no evidence as to how much tolerance, if any, is allowable.

Although Respondent has not installed a countertop in the playroom/game room, this is not proven to be a workmanship violation because Ms. Ross has not selected a remnant from Respondent’s yard as required by the parties’ agreement.

It has not been shown by a preponderance of the evidence that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A) or Ariz. Rev. Stat. section 32-1154(A)(3).

Because it has not been proven that Respondent violated the workmanship standards, Respondent’s failure to comply with ROC’s Directive is justified and not a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

IT IS ORDERED that case number 2021-01848 is dismissed.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, October 14, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000