ALJDEC decisions subject to certification as final

2021A-06627-CHC-ROC · Registrar of Contractors · 2022-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jacqueline Sloan,

COMPLAINANT

Anozira Flooring and Interiors, LLC,

License No. ROC 272107,

RESPONDENT

No. 2021A-06627-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 29, 2022

APPEARANCES: Complainant Jacqueline Sloan appeared on her own behalf. Michael Schulik appeared on behalf of Respondent Anozira Flooring and Interiors, LLC. Arizona Registrar of Contractors Investigator Steve Nelson appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Anozira Flooring and Interiors, LLC (“Respondent”) is the holder of License No. 272107 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about December 18, 2020, Jacqueline Sloan (“Complainant”) contracted with Respondent for Respondent to perform remodeling at Complainant’s home. The contract price was $12,608.55. Complainant paid Respondent in full on January 20, 2021. The scope of the contract included the following in pertinent part:

Scuff up and paint kitchen and bath cabinets with Lacquer

. . . .

Patch small holes and paint all walls, ceiling, doors and trim

. . . .

Install Luxury Vinyl Plank flooring on all existing travertine floors

. . . .

Make all self-close on cabinets

Remove cabinet above fridge . . .

Have 2 new cabinet doors made

. . . .

On or about December 10, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Steve Nelson. After a January 19, 2022 jobsite inspection, Investigator Nelson issued a Written Directive 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 February 15, 2022.

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

Compliance Item: 1 - Walls were not sanded and have indentations and dripping paint.

Investigator’s Observation: There were multiple areas that had dents and indents throughout the house that should be repaired (as per contract line item). There were poor drywall repairs that should be corrected. A drywall seam was noticeable in the living room. Paint work is not completed under the counter top. The majority of the painted areas were sub standard. Respondent should properly prepare, sand and refinish these areas including missing caulking. Due to the extent of poor paint finish on the majority of walls, it may be necessary to refinish the whole area. Contract calls for minimum sheen walls and flat ceilings, it appears flat paint was used throughout.

Compliance Item: 2 - Half Inch yellow borders around all beams and corners of walls

Investigator’s Observation: This item is verified, Paint coverage was not

sufficient. Respondent was aware of this occurrence and should correct by

appropriate means.

Compliance Item: 3 - Kitchen cabinets have unfinished edges, dripping paint, were not hung properly and were not level.

Investigator’s Observation: Cabinets have unfinished edges, dripping paint. There is missing paint under the microwave and upper cabinets. Almost all cabinets and vanity doors and drawers in all rooms are misaligned and need adjustment, reveals were observed from 0" to 1/4" (Contract calls for addition of self closing hinges). The reveals should all be consistent and the drawers and doors should operate correctly. There were also door handles that were hung upside down and misaligned in the kitchen. The Respondent should repair the joint between the upper cabinet and ceiling. If the upper cabinets were removed, the Respondent should ensure they are re-hung and supported correctly.

Compliance Item: 4 - Caulking is missing, and lacquer paint was supposed

to be used, but wasn't.

Investigator’s Observation: The contract calls for lacquer paint on the cabinets, the Respondent confirmed a Urethane Enamel was used. The cabinets should be completed as per contract. If the parties reach an amicable resolution to this item by alternate means, please notify the assigned investigator.

Compliance Item: 5 - One vinyl plank is indented and one is scratched, transition strips dont stay down.

Investigator’s Observation: This is verified, the Respondent should repair the two vinyl planks. The transition strips were coming up and should be attached as per manufacturer recommendations.

All errors in original.

On February 16, 2022, Investigator Nelson issued a Warning Letter to Respondent because it appeared to Investigator Nelson that Respondent’s contract documents were missing at least one of the nine statutorily required elements for contracts.

After the expiration of the Written Directive, Investigator Nelson ascertained that no work had been performed by Respondent. Investigator Nelson forwarded the Complaint 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), A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Nelson testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Nelson explained that Michael Schulik “took over” Respondent’s existing license from Larry Summers who was Respondent’s previous qualifying party and who disassociated from the license on January 19, 2022. Respondent’s contract with Complainant pre-dated Mr. Schulik’s acquisition of Respondent, however, Investigator Nelson testified that Mr. Schulik, as the person named on Respondent’s license, and Respondent as the licensee, remain responsible for the work that Respondent previously performed and for which it previously contracted.

Investigator Nelson testified that during his jobsite inspection, he observed that the home was “immaculate,” that there were not a lot of personal belongings, and did “not even look lived in.” Investigator Nelson testified that at the time of the jobsite inspection, Respondent agreed that several deficiencies existed. Respondent admitted to the “yellow border issue” and agreed to make the necessary repairs. Investigator Nelson testified that it appeared that during the removing and rehanging of the cabinet doors for painting and installation of soft-close hinges, the cabinet doors were misaligned. Investigator Nelson testified that the parties’ contract calls for “scuff up with lacquer,” however, lacquer was not used. During his testimony, Investigator Nelson referenced the photographs he took during the jobsite inspection that depict Respondent’s workmanship deficiencies.

Investigator Nelson testified that Mr. Schulik admitted to the workmanship deficiencies, however, does not believe Respondent should be held responsible for them.

Investigator Nelson testified Respondent’s contract documents lack the advisement that a property owner has the right to file a complaint with the Registrar, an estimated date of completion of the project, and a draw schedule.

Complainant testified that she contracted with Respondent though Larry Summers who was Respondent’s owner at that time, and paid the full contract amount prior to the completion of the work. Complainant testified as to all of Respondent’s workmanship deficiencies and referenced photographs she had taken to illustrate the deficiencies.

Mr. Schulik asserted that it was his belief that some of the issues about which Complainant has complained were actually caused by Complainant, as Complainant did not file the instant Complaint until almost one year after the work was completed. Mr. Schulik specifically asserted that because the dent in the flooring was next to a billiard table, the dent was caused by a dropped billiard ball.

Mr. Schulik testified that Respondent was willing to correct some of the items that are admittedly defective, however was not willing to correct others for which he believed Respondent should not be responsible. Mr. Schulik testified that Respondent was willing to repair the “majority of defective paint,” however, the reason the repairs were not performed was because Complainant “was demanding more than what was specified in the Written Directive.” Regarding the yellowing of the paint, Mr. Schulik testified that this is “a property-wide issue” and that at least ten other units in the building have the same problem. Mr. Schulik asserted that the yellowing of the paint is caused by moisture due to “the materials used during construction.” Mr. Schulik testified that Respondent can remedy the issue with the paint, however, it may not be a long-term solution. Mr. Schulik asserted that he “did not think he needed to repaint the entire unit and disagreed with the sheen.” Mr. Schulik testified that he “thinks only six or seven areas need to be repainted.”

Regarding the cabinets and drawers, Mr. Schulik testified that Respondent offered to correct the misalignment, but he “did not agree with” the other corrections. Mr. Schulik testified that “lacquer” is a “slang” or generic term, and that the product utilized by Respondent was “better than” a lacquer product. Mr. Schulik asserted that repainting the cabinets with lacquer “would fail.” Mr. Schulik further asserted that the “cabinets came out well but not perfect,” because the cabinets are “fifteen years old and in disrepair.”

Regarding the transition strip, Mr. Schulik testified that “it is typical to have to go back” to repair because “it is difficult to get it to stay.”

In closing. Mr. Schulik asserted that he “feels he is being taken advantage of.”

Administrative notice is taken of Respondent’s prior License record on May 12, 2022. Such prior License record reflects that Respondent’s License No. 272107 was first issued on March 31, 2011, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplined complaints, and zero resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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.”

The credible and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. 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(A).

The evidence established that Respondent’s contract documents did not contain all nine required elements. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued notwithstanding Respondent’s acknowledgement that deficiencies in the workmanship exist. 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. 272107 for a period of seven (7) 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 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, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, May 16, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary