ALJDEC - Licensing
2022A-04864-CHC-ROC · Registrar of Contractors · 2023-08-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darlene Oesau,
COMPLAINANT,
v.
Classic Garage, Inc.
License No. ROC 240029,
RESPONDENT.
No. 2022A-04864-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 9, 2023
APPEARANCES: Darlene Oesau appeared on behalf of herself. Donald Ray appeared on behalf of Respondent Classic Garage, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Classic Garage, Inc. holds license number 240029 issued by the Arizona Registrar of Contractors (Registrar).
2. Respondent’s qualifying party is Donald Ray.
3. Respondent agreed to remodel Complainant Darlene Oesau’s floor for $4,394.00.
4. Complainant paid Respondent in full for the construction work.
5. On or about July 27, 2020, Respondent started work on Complainant’s home.
6. On or about July 29, 2020, Respondent stopped work.
7. On or about June 13, 2022, the Registrar received a complaint from Complainant alleging poor workmanship on the part of Respondent.
8. On July 27, 2023, Investigator David Thomas conducted a job-site inspection.
9. On September 23, 2022, the Registrar directed Respondent through a Written Directive, to correct the following complaint item by appropriate means, no later than October 10, 2022:
Compliance Item: 1 - I filed an original complaint against Class Garage in October of 2020-Complaint attached. Classic Garage was given a directive order dated 1/7/2021 attached. Per the directive Classic Garage replaced the floor with epoxy layers, and when it came time to apply the clear coat of urethane Brandon of Classic Garage wanted to apply a different product. We were told this would be a harder top coat finish. We allowed Brandon to apply this different product. Because we thought the Directive had been completed we released the complaint. After about 6 months I noticed bubbles appearing in the top coat. Brandon wanted to wait until his Rep was in town to come out and look at the bubbling. The bubbles continued to burst and the top coat of this different product began to peel away. When driving the car on the surface, black marks were left in the down to the epoxy because the top coat has peeled away. When Brandon and the product rep came to inspect the floor, they said we were the first people they had used this product on. They agreed to replace the epoxy floor and provide covered capability to store our garage accessories in and provide labor. The re-do of the flooring was scheduled for January of 2022 and nothing happened. I was told they had many other complaints on the product and that they would not be replacing my floor because they were fighting with the manufacturer. To date my floor has not been replaced, its peeling terrible workmanship.
Investigator’s Observation: This complaint item is verified. Multiple areas of the topcoat have peeled from the epoxy floor. some areas larger than 3.5 inches by 2 inches as seen in the photos with a crack card used as a size reference. multiple areas have bubbles forming at the epoxy surface. Respondent shall correct by appropriate means.
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.
10. After the Directive was issued, Mr. Ray stated that he would not comply with the Directive due to a lawsuit against the manufacturer of the floors installed in Complainant’s home. Mr. Ray stated that he would not be able to make repairs until mid-December of 2022, after the lawsuit ended.
11. Therefore, the Registrar issued a new Directive on January 27, 2023 with a due date of March 1, 2023. The Registrar later learned that Complainant was out of town during that time period and could not provide Respondent with access to her home. After Complainant returned home, the Registrar extended the due date for compliance to May 24, 2023. Mr. Ray told Investigator Thomas that he could not comply due to time restraints on different projects and an increase in costs and materials.
12. Respondent failed to comply with the Directive by the due date of May 24, 2023.
13. On June 1, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Ariz. Rev. Stat. §§ 32-1154 (A)(3) and (22); Arizona Administrative Code (A.A.C.) § R4-9-108(A).
14. Respondent filed a timely answer to the Citation.
15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
16. A hearing was held on August 9, 2023.
17. At hearing, Complainant testified on behalf of herself. Mr. Ray testified on behalf of Respondent. Investigator Thomas testified regarding his investigation of the complaint and the issuances of the Directives.
18. Mr. Ray alleged that Complainant denied access to Respondent to make a repair her floor with new product in June of 2023. However, Investigator Thomas provided credible testimony that Mr. Ray informed him that he was unable to comply with the Directive by the extended due date of May 24, 2023 due to increased prices for costs and materials, and time constraints on different projects. Additionally, Mr. Ray stated that the lawsuit ended in April of 2023.
19. Complainant denied that she prevented Respondent from making corrections under the Directive by the due date.
20. The Administrative Law Judge concludes based on the testimony provided at hearing that Complainant did not deny Respondent access to her home until after the Directive expired on May 24, 2023. Respondent failed to establish valid justification for failing to comply with the Directive by May 24, 2023 as the lawsuit ended in April of 2023.
21. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on August 29, 2023. Respondent’s license record shows that its licensed was issued on November 27, 2007 and that there is only one open complaint against Respondent’s license. Respondent’s license record also shows that one complaint was resolve or settled. Respondent’s license has never been disciplined by the Registrar.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. Ariz. Rev. Stat. Ariz. Rev. Stat. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. The preponderance of the evidence does not show that Respondent failed to perform the work described in complaint item 1 in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to
correct the item listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. § 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 ROC License: No. 240029 held by Classic Garage, Inc., for three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, August 29, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
David Thomas
[email redacted]
Darlene Oesau
8073 N. Sage Vista
Prescott Valley, AZ 86315
Classic Garage Inc.
PO Box 3723
Prescott, AZ 86302
[email redacted]
By: OAH Staff