ALJDEC decisions subject to certification as final

2022A-05516-CHC-ROC · Registrar of Contractors · 2023-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lana Laux ,

COMPLAINANT

Mostar Flooring Inc

License No. ROC 244455,

RESPONDENT

No. 2022A-05516-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 29, 2022, 9:00 A.M.

APPEARANCES: Complainant Lana Laux appeared on her own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Mostar Flooring, Inc. (Respondent), is the holder of License Number 244455 issued by the Registrar of Contractors (Registrar).

2. On or about July 7, 2022, Lana Laux (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with tile work performed by Respondent at a residence in Fountain Hills, Arizona (“project”).

3. The Registrar performed an inspection of the project on August 4, 2022. Thereafter, the Registrar issued a Directive, dated August 5, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by August 22, 2022, as follows:

Compliance Item # 1: ...they did not use spacers and the tiles are not lined up correctly...

Investigator’s Observation: Verified

The complainant explained that the grout lines and tiles are not straight in multiple locations throughout the house. The complainant walked the entire house with me and pointed out the areas she was concerned with. I saw there were multiple inconsistent grout lines in each of the following rooms; primary bedroom, primary bathroom, primary bedroom steps, laundry, all hallways, den, den bath, entry, living room steps, family room, and kitchen. The inconsistent grout lines varied in width from about 1/8” to exceeding 3/16”. The

nominal centerline of the joints were out of line. The four corners of multiple tiles were not straight and could be readily seen. These conditions were extensive and throughout every tiled floor surface in the house. Tile surface should be straight and reasonably flat, allowing for individual characteristics of the tile. Nominal centerline of all joints should be straight and even width, with due allowances for hand-molded or rustic tiles. Crooked, out of line tile, is not acceptable.

The respondent should identify the specific locations where these conditions exist and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, professional standards, and within the scope of their license.

Reference Picture(s) 2-21

Compliance Item # 3: ...the schluter was poorly installed, is raised in some areas and has created a tripping hazard...

Investigator’s Observation: Verified

The complainant explained that the schluter was not installed parallel to the tile, causing a tripping hazard from the portion of the schluter that extended past the tile. The complainant showed me the areas of the schluter that she was concerned with. I saw that the schluter was installed on all the steps going into the primary bedroom, living room, family room, and kitchen. In all instances, the schluter was not parallel with the tile and had areas of ‘lippage’ exceeding 1/32” and in some cases exceeding 3/32” below the level of the tile. Lippage exceeding 1/32” is not acceptable. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 22-31

Compliance Item # 5: ...the grouting is messy and looks horrible...

Investigator’s Observation: Verified

The complainant showed me multiple areas in the kitchen (at toe kicks), kitchen stairs, entryway (grout on baseboards), den bath, den, and fireplace stone. I inspected these areas and I saw that the grout against the kitchen toe kicks and baseboards was sloppy, with grout on cabinets and inconsistent widths. I saw gaps/voids in the grout in all locations mentioned above. The grout surrounding

the fireplace was sloppy, with grout on the stone and an inconsistent appearance. I saw the grout along baseboards in the remainder of the home was also sloppy and inconsistent, with grout stains on the baseboard in the entryway. Missing or irregular grout is not acceptable. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 37-53

Compliance Item # 6: ...tiles are uneven.

Investigator’s Observation: Verified

The complainant pointed out several areas in multiple rooms that she believed had uneven tiles. I inspected and measured multiple tiles that exceeded lippage of 1/32” in the following rooms; hallway outside of den, entryway near pantry x 2, hallway above kitchen steps, bottom of family room steps, SE corner of family room x 2, dining room, and kitchen. These conditions were extensive and throughout every tiled floor surface in the house. Lippage of all manufactured Natural Stone Tiles are to be no greater than 1/32" between individual tiles.

Reference Picture(s) 54-65

4. After observing that Respondent had not performed any corrective work, the Registrar then issued a Citation to Respondent, dated September 14, 2022, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

6. After a continuance of an initial hearing date, the Registrar issued a Notice of Hearing, dated October 11, 2022, that set a hearing for December 29, 2022, at 9:00 A.M. The Registrar emailed a copy of the Notice of Hearing to Respondent on or about October 11, 2022, at its address of record.

. 7. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to oppose or object to disciplinary action being imposed against its license.

8. At the December 29, 2022, hearing, Complainant Lana Laux testified on her own behalf. Mark Knipp, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 23. No exhibits were submitted on behalf of Respondent.

9. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project which were consistent with his job inspection notes, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he performed a pre-hearing inspection on August 30, 2022, and observed that the Directive items had not been addressed or corrected. He further testified that he had one email communication with Respondent concerning the discoloration of the grout, but that this was not a Directive item.

10. Complainant Lara Laux testified that she did not hire anyone else to address the Directive items and that no grout was ever repaired.

11. Administrative notice is taken of the Registrar’s public website which reflects a “Voluntary Cancellation” of Respondent’s license status as of October 24, 2022.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. The cancellation status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).

4. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

5. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).

6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

7. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”

8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a) and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(3). No evidence was presented to dispute existence of any of the Directive items.

The testimony of the Investigator and the photographs from the job inspection persuades the Tribunal that the work was not performed in a professional and workmanlike manner.

9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent made no effort to perform corrective work. Further, there was no evidence presented of a valid justification for failing to do so.

10. In conclusion, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Mostar Flooring, Inc.’s, License Number 244455 is suspended for two days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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)(5), unless Respondent tenders payment of the outstanding prior civil penalty.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, January 10, 2023.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Mostar Flooring Inc.

[email redacted]

Lana Laux

[email redacted]

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