ALJDEC decisions subject to certification as final
2022A-00532-CHC-ROC · Registrar of Contractors · 2022-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Elizabeth J Stirrett,
COMPLAINANT
v.
Unique Flooring LLC
License No. ROC 296426,
RESPONDENT
No. 2022A-00532-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 9, 2022
APPEARANCES: Complainant Elizabeth J. Stirrett appeared via Google Meet. Victor Arguello appeared via Google Meet on behalf of Respondent Unique Flooring LLC. Registrar of Contractors Investigator Cliff Corlett appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Unique Flooring LLC (Respondent) is the holder of License No. 296426 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 4, 2021, Elizabeth J. Stirrett (Complainant) signed an invoice with Respondent for the purchase and fabrication of granite as well as demolition and installation of kitchen and bathroom counters. The total contracted price was $7,535.00, and Complainant paid a $3,500.00 deposit.
On or about December 29, 2021, the parties entered into an agreement whereby Respondent would refund $2,500.00 back to Complainant within 30 days. The parties also agreed to cancel the initial agreement.
On or about January 19, 2022, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Cliff Corlett. The jobsite inspection was performed on February 4, 2022.
Investigator Corlett then issued a written directive on or about February 9, 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 or before February 25, 2021.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - $3,500.00 Cash deposit given.
Investigator’s Observation: Respondent failed to purchase agreed on 3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21 SETTLEMENT AGREEMENT
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 2 - Failed to purchase chosen granite from distributer.
Investigator’s Observation: Respondent failed to purchase agreed on 3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21
SETTLEMENT AGREEMENT.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - 1 kitchen sink and 3 bathroom sinks were included in the contract.
Investigator’s Observation: Respondent failed to purchase agreed on 3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21
SETTLEMENT AGREEMENT.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Switched material to a different color and thinner granite material
Investigator’s Observation: Respondent failed to purchase agreed on
3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21 SETTLEMENT AGREEMENT.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Demo'd kitchen and two bathrooms leaving on plywood, templated never to return.
Investigator’s Observation: Respondent failed to purchase agreed on 3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21
SETTLEMENT AGREEMENT.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - 1 bathroom sink was given to me on 12/30/2021.
Investigator’s Observation: Respondent failed to purchase agreed on 3cm granite material for complainants countertops. On 12/30/21 the parties entered into an agreement for the Respondent to refund Complainant $2,500.00 and to supply the Complainant with the three contracted bathroom sinks. Upon payment of the $2,500.00 and delivery of the sinks, the contract to provide and install the countertops would no longer be valid.
RESPONDENT SHOULD FULFILL THE TERMS OF THE 12/29/21 SETTLEMENT AGREEMENT.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Respondent operating in a name other than the name as it appears on the license.
Investigator’s Observation: Respondent, Kristen Arguello appears on 2
ROC licenses, # 325681 (Suspended/non-renewal) and # 296426, current. Kristen Arguello appears on the LLC for Supreme Stone LLC and on the business card for Supreme Stone as co-owner along with Victor Arguello. It is a violation of A.R.S. 32-1145-A 14 to operate a construction business in Arizona in a name other as the name on the license.
RESPONDENT SHOULD OPERATE THIS CONSTRUCTION BUSINESS ONLY IN THE NAME AS IT APPEARS ON THE LICENSE.
Governing Rule: Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.
Compliance Item: 9 - Contract fails to meet AZ state requirements for a construction contract.
Investigator’s Observation:
Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
(All errors contained in the original)
On March 7, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(14) and A.R.S. § 32-1154(A)(22).
On or about March 16, 2022, Respondent e-mailed an Answer to the Registrar.
On or about March 25, 2022, a Notice of Hearing was issued setting a hearing on May 9, 2022 at the Office of Administrative Hearings, an independent state agency.
Investigator Corlett testified as to his involvement and the above timeline.
Investigator Corlett testified that Respondent failed to abide by the terms of the December 29, 2021, updated contract/agreement by failing to pay the $2,500.00.
In addition, Investigator Corlett testified that the license name issue, was now resolved as Respondent had properly updated its information with the Registrar.
Complainant testified that she agreed to a refund once she found out that Respondent did not purchase the granite she ordered. Complainant testified that she had not received payment from Respondent.
Victor Arguello testified that he did not purchase the granite Complainant chose because he found a better quality stone. Mr. Arguello testified that while he typically did not provide refunds, he did in this case, and offered to pay $2,500.00 within 30 days of their agreement on December 29, 2021.
Mr. Arguello also testified that he did not pay Complainant the settlement amount because Complainant filed with the Registrar prior to the 30 days expiring, the fact that Complainant filed a police report, and upon advice of an attorney who told him the let the matter play out.
Kristen Arguello testified that the Complaint should not be valid as Respondent still had five days to pay per the agreement.
Administrative notice is taken of Respondent’s prior License record on May 23, 2022. Such prior License record reflects that Respondent’s License No. 296426 was first issued on March 6, 2015, and reflects that there are three open complaints, one of which includes the present complaint.
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 failed to pay per the parties’ settlement agreement. The Tribunal finds that while Complainant may have prematurely filed with the Registrar, it did not excuse Respondent’s obligation to pay. Further, the Registrar also provided Respondent with almost an additional 30 days to comply with the terms of the agreement. 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. Further, Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
At hearing, Investigator Corlett testified that the name on the license has been resolved. Therefore there is no violation of A.R.S. § 32-1154(A)(14).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that within 10 days of the effective date of the Order, the Respondent shall pay $2,500.00 to Complainant, via money order or cashier’s check. Should Respondent fail to pay, the Registrar shall suspend Respondent’s License No. 296426 for a period of four days.
It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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.
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, May 23, 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