ALJDEC decisions subject to certification as final

2021A-06533-CHC-ROC · Registrar of Contractors · 2022-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carina Di Falco,

COMPLAINANT

Classic Treasures LLC,

License No. ROC 330089,

RESPONDENT

No. 2021A-06533-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2022

APPEARANCES: Complainant Carina Di Falco appeared on her own behalf via Google Meet. Adam Mosley appeared on behalf of Classic Treasures LLC. Registrar of Contractors Investigator Jason Simpson appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Classic Treasures LLC (Respondent) is the holder of License No. 330089 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 13, 2021, Carina Di Falco (Complainant) agreed to have Respondent install new cabinets in her kitchen as well as upgrade her bathroom. The total cost was to be $3,735.00.

On or about December 20, 2021, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jason Simpson. The initial jobsite inspection was performed on January 6, 2022, at which time the Complainant agreed to allow Respondent additional time to complete the work.

On February 2, 2022, the case was re-opened, and a jobsite inspection was scheduled for February 8, 2022.

Investigator Simpson then issued a written directive on or about February 18, 2022, to Respondent that provided as follows:

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 March 08, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “tile in bathroom is set up against the tub and not level or complete and was broken on the bottom left hand corner”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should complete and make the necessary repairs.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “bathroom vanity not installed;upper kitchen cabinet top right hand cabinet is crooked and hits the wall at the top right side,”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should complete and make the necessary repairs.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 3: “;bottom kitchen cabinets not installed ;bottom kitchen cabinets and spacers damaged;countertops damaged and cut incorrectly;; bathroom door not installed; base bords in bathroom not installed”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should complete and make the necessary repairs.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original).

On March 28, 2022, Investigator Simpson completed a Compliance Jobsite Inspection. Investigator Simpson’s notes contained the following:

Compliance Jobsite Inspection General Notes: ROC received the case on 12/10. My first JSI was scheduled on 1/6/22. During that JSI both parties were onsite and work had not been completed. This Investigator suggested to both parties to get a schedule and complete the project in a timely manner and both parties agreed to close case to complete work. Per the Complainant request, I reopened the case on 2/2 and scheduled a second JSI. On 2/8/22 I completed second JSI and again no work was completed. I issued a written directive on 2/18/22 with completion date of 3/18/22 allowing 18 days for completion. During scheduled CJSI on 3/28 no work had been completed and poor workmanship in areas of residence.

This Compliance Inspection was only to evaluate the current conditions of items requiring corrective work as stated on the Directive. Those items are listed below.

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

Governing Rule: A.R.S. § 32-1154 (A) 22: Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

As stated on Directive: “tile in bathroom is set up against the tub and not level or complete and was broken on the bottom left hand corner”

Investigator’s Observation from initial inspection: Observed bathroom had been attempted to be corrected work not complete or tile replaced. Bathtub had some observed damage to be from tub installation.

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.

As stated on Directive: “bathroom vanity not installed;upper kitchen cabinet top right hand cabinet is crooked and hits the wall at the top right side,”

Investigator’s Observation from initial inspection: Verified work has not been completed.

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

As stated on Directive: “;bottom kitchen cabinets not installed ;bottom kitchen cabinets and spacers damaged;countertops damaged and cut incorrectly;; bathroom door not installed; base bords in bathroom not installed”

Investigator’s Observation from initial inspection: Verified work has not been completed.

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

(All errors contained in the original).

On April 6, 2022, Investigator Simpson issued a Warning Letter to Respondent regarding a possible violation of A.R.S. § 32-1158.

On April 12, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(8); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about April 27, 2022, Respondent e-mailed an Answer to the Registrar.

On or about May 11, 2022, a Notice of Hearing was issued setting a hearing on June 22, 20022 at the Office of Administrative Hearings, an independent state agency.

At hearing. Investigator Simpson testified as to the Registrar’s involvement and the above timeline.

Investigator Simpson testified that initially the parties verbally agreed to a 30 day extension to complete the work, however, work still remained incomplete through the end of the Written Directive. Investigator Simpson testified that Respondent had more than enough time complete the Complaint items.

Complainant testified on her own behalf and offered 42 exhibits into evidence.

Complainant testified that she purchased most of the materials and the job should have been performed relatively quickly, and is now going to cost her “quite a bit more to get it fixed.”

Complainant testified that from January 6, 2022 forward, Respondent had a set of the house keys so workers could come and go as they pleased to complete the work.

Complainant admitted to denying access to one of Respondent’s workers, “Johnny” who had previously urinated on her patio and was verbally aggressive toward her.

Finally, Complainant testified that it was not until near the end of the Directive timeframe that Respondent wanted to come in and complete the work.

Adam Mosley testified on behalf of Respondent. He became Respondent’s owner in January 2022, and testified that he tried to do everything to correct the project for Respondent.

Mr. Mosley testified that Complainant would “hover” over his workers by standing in the doorway and critiquing their work, so the correct work could not be completed. Mr. Mosley also testified that Complainant refused access.

Mr. Mosley also testified that he tried to provide Complainant with a full refund and was still willing to complete the project.

Administrative notice is taken of Respondent’s prior License record on July 6, 2022. Such prior License record reflects that Respondent’s License No. 330089 was first issued on August 7, 2020.

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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not completed for the price stated in the contract. The tile was completed against the tub in the bathroom, the bathroom vanity was not installed, and the bottom kitchen cabinets were not installed. Therefore, Complainant established that Respondent did not complete the project in violation of A.R.S. § 32-1154(A)(8).

The preponderance of the evidence established, that the contract presented did not meet the minimum elements of a contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Further, the Tribunal is not persuaded by Mr. Mosley’s testimony that Complainant denied access. 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. 330089 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.

It is further recommended that Respondent present the Registrar with a current copy of its contract proving that it meets statutory requirements within 30 days of this order. If Respondent fails to submit a current copy of its contract that complies with the requirements set forth in A.R.S. § 32-1158(A), Respondent’s license shall be suspended until the Registrar receives a copy of Respondent’s contract that complies with statutory requirements.

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, July 6, 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