ALJDEC decisions subject to certification as final
2022A-01400-CHC-ROC · Registrar of Contractors · 2022-11-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shana Bennett,
COMPLAINANT,
v.
Joseph Robert Palma
dba Flooring Specialist
ROC License No. 330228,
RESPONDENT.
No. 2022A-01400-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 01, 2022 at 1:30 PM.
APPEARANCES: Shana Bennett (“Complainant”) appeared on her own behalf. Joseph Palma (“Respondent”), dba Flooring Specialist, appeared on his own behalf. Steve Hammons appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On August 23, 2020, the Registrar issued License No. 330228 Specialty Dual CR-8 Floor Covering contracting license to Respondent. The license is renewed through August 31, 2024. Joseph Robert Palma is the Qualifying Party/Owner on this license. Respondent’s address of record for the license is 1657 Oak Shadows Dr. Tucson, AZ 85737. Respondent has an active $6,750.00 surety bond on the license issued by RLI Insurance Company, effective July 29, 2020. There is no prior discipline noted for the license, save one open complaint which is presumably related to this matter.
On February 18, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 330228 alleging poor workmanship of a flooring installation project. The Registrar designated it Complaint No. 2022-01400 and assigned to Steve Hammons (“Investigator Hammons”) for investigation.
On June 13 2022, Investigator Hammons issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 29, 2022, at 9:30 a.m.
On June 29, 2022, Investigator Hammons conducted a review of the contract, payment, correspondence executed between the parties, and inspected the work that had been performed on the project to date. He also took 19 photographs of the project site. When he was finished, Investigator Hammons drafted his Inspection Notes. Ultimately, Investigator Hammons determined that Complainant’s narrative constituted 11 complaint items, of which he substantiated 5 as failing to meet the Registrar’s minimum workmanship standards. Specifically, complaint items 1, 3, and 8-10.
On June 29, 2022, Investigator Hammons issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on July 15, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and 32-1154(E).
On July 18, 2022, Investigator Hammons issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on July 21, 2022, at 9:30 a.m.
On July 21, 2022, Investigator Hammons inspected Respondent’s corrective work on the project and took 15 photographs. When he was finished, Investigator Hammons drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Hammons determined that Respondent had not performed corrective work on any substantiated complaint item.
On July 21, 2022, Investigator Hammons forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On July 29, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until August 13, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On August 10, 2022, the Registrar received Respondent’s Answer. In pertinent parts, Respondent noted the following:
My license should not be suspended or revoked because I have done everything I can to try and satisfy the Complainant’s issues. I had informed the Complainant the day of [the jobsite] inspection that I would need her to pick out a color of transition going into master bedroom so that we could schedule a day to make the necessary corrections. Complainant never picked out a transition for us to install. I went ahead and bought a transition piece that I thought would be acceptable. I notified Complainant we were going to come out August 10th and complete items on written directive. Complainant then told me she would not let us into the house. She said our time to correct had expired and she was getting other bids to correct items. I tried to convince her to let us take care of the items as Steve from ROC that we could satisfy the corrective items and still close case. She then hung up the phone on me. I was always more than willing to correct the directive requirements. The delay was due to the Complainant not picking out the transition.
(All errors in original.)
On August 12, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 01, 2022. Per the September 01, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Hammons as a witness. Joseph Palma testified on behalf of Respondent. The Registrar’s agency file, including the Notice of Hearing and supplement agency files, were admitted into the record as their own exhibits. The substantive evidence of record is as follows:
Complainant owns residential property located at 39735 S. Diamond Bay Tucson, AZ 85739.
On or about April 24, 2022, Complainant and Respondent entered into a $10,500.00 contract to install flooring in Complainant’s residence.
Complainant paid for the contract in full.
Mr. Palma’s father and employee of Respondent, Daniel Palma, performed the original scope of work for the underlying project.
Communication broke down between the parties, in large part, due to Complainant’s hostility towards Respondent. Investigator Hammons experienced said acrimony firsthand during his jobsite inspection, which nearly had to be ended early as a result.
The only time the parties spoke during the Directive’s compliance period was on June 29, 2022. The parties did not schedule a time for Respondent to perform corrective work.
On July 11, 2022, Respondent did reach out to Investigator Hammons via email to discuss his attempts to address the Directive, he did not allege a denial of access or request an extension of the Directive’s compliance period.
During the Registrar’s investigation Mr. Palma was under the belief that corrective work, in compliance with the Directive, could not commence until Complainant “picked out thresholds” and a “tub skirt.” He did not understand that the corrections needed to be made by July 15, 2022.
In closing, Respondent argued that he is still willing to perform corrective work in accordance with the Registrar’s Directive.
In closing, Complainant noted her dissatisfaction with Investigator Hammons’ inspection of the underlying project, and argued that her dismissed unlicensed complaint she be reopened by the Registrar.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“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.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”
The material facts in this matter clear.
It is clear from the record that the parties had a flooring installation contract, for which Complainant paid the price in full. It is also clear that Investigator Hammons substantiated 5 complaint items as failing to meet the Registrar’s minimum workmanship standards, and that Respondent failed to perform corrective work in compliance with the Registrar’s Directive in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22).
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has failed to sustain his burden. While it is true that Complainant needed to select a threshold in order for Respondent to address complaint item 1, Respondent did not need anything from Complainant other than access in order to address complaint items 3 and 8-10. Because Mr. Palma admitted that he made no attempts to perform corrective work between June 19, 2022, and July 15, 2022, it cannot be concluded that there was a denial of access to the project site.
Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Joseph Robert Palma, dba Flooring Specialist, ROC License No. 330228, be suspended for two (2) days based on his violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).
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 40 days from the date of that certification.
Done this day, November 09, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Shana Bennett, Complainant
39735 S Diamond Bay
Tucson, AZ 85739
[email redacted]
Joseph Robert Palma, Respondent
dba Flooring Specialist
1657 Oak Shadows Dr.
Tucson, AZ 85737
[email redacted]
By Miranda Alvarez
Legal Secretary