ALJDEC - Licensing

2022A-05593-CHC-ROC · Registrar of Contractors · 2023-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey Pagenkopp

COMPLAINANT,

v.

Rainbow Tile and Carpet, Inc.

License No. ROC 188745,

RESPONDENT.

No. 2022A-05593-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 11, 2023 and March 14, 2023, with the record held open until April 4, 2023 for the sole purpose of receiving written closing statements. APPEARANCES: Complainant Jeffrey Pagenkopp appeared on behalf of himself. Sara Stark, Esq. appeared on behalf of Respondent Rainbow Tile and Carpet, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On September 28, 2022, the Registrar of Contractors (ROC),

issued a Notice of Hearing setting the above-captioned matter for hearing on November 1, 2022, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. Respondent Rainbow Tile and Carpet, Inc. (Respondent) holds license number 188745 issued by the ROC.

3. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Respondent may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) section R4-9-108(A); A.R.S. section 32-1154(A)(22).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

5. On or about June 29, 2022, Complainant Jeffrey Pagenkopp and Respondent entered into a residential construction contract wherein Respondent would install vinyl plank flooring in Complainant’s home.

6. On or about July 5 2022, Respondent started work on the project

7. On or about July 9, 2022, Respondent stopped work on

Complainant’s home.

8. On or about July 11, 2022, Complainant filed a complaint with the ROC alleging poor workmanship on the part of Respondent.

9. The complaint was assigned to ROC Investigator Sheldon White.

10. On July 25, 2022, Investigator White conducted a job-site inspection.

11. On August 2, 2022, the ROC issued a Directive to Respondent that provided, in relevant part, 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 8-22-2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

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

Compliance Item: 1 - The flooring is not installed correctly (at JSI Complainant specified A. there was not a 1/4 gap to the wall in places in the house. B. that a piece of 1/4 round had been caulked to vanity in master bathroom). C. Around door flooring gap to wide to cover by base board. Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

A, B & C were found to not meet manufactures' installation instructions in at least one spot.

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 - The installers were using a sledgehammer to smash down the edges because the product was not installed correctly so they were breaking the locking system as there is gaps in the flooring. Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Note: there are actual two items in this complaint item: A: Sledgehammer divot in flooring. Verified B: Gaps along the edge of flooring/flooring not snapped together. Verified

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 - I have over 130 photos and pieces of tape on the ground where the flooring needs repaired or replaced. (at JSI Complained point out A. some corner that were chipped or pealing ,B. Edge seem that was chipped, C. "scratches" scores in flooring that appear to be made by a utility knife.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Note there are actual three items in this complaint item: A: some corner that were chipped or pealing. Verified.

B: Edge seem that was chipped. Verified C. “Scratches" scores in flooring that appear to be made by a utility knife. Verified

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.

12. On or about September 6, 2022, Investigator White conducted a compliance job-site inspection. Investigator White concluded that Respondent had failed to appropriately correct the Directive items. Investigator White’s notes regarding his compliance job-site inspection provided, in relevant part, as follows:

Compliance Item: 1 - The flooring is not installed correctly (at JSI Complainant specified A. there was not a 1/4 gap to the wall in places in the house. B. that a piece of 1/4 round had been caulked to vanity in master bathroom). C. Around door flooring gap to wide to cover by bas board.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. A, B & C were found to not meet manufactures' installation instructions in at least one spot.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) workmanship

Compliance Item: 3 - The installers were using a sledgehammer to smash down the edges because the product was not installed correctly so they were breaking the locking system as there is gaps in the flooring.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Note: there are actual two items in this complaint item: A: Sledgehammer divot in flooring. Verified B: Gaps along the edge of flooring/flooring not snapped together. Verified

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 - I have over 130 photos and pieces of tape on the ground where the flooring needs repaired or replaced. (at JSI Complained point out A. some corner that were chipped or pealing ,B. Edge seem that was chipped, C. "scratches" scores in flooring that appear to be made by a utility knife.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Note there are actual three items in this complaint item: A: some corner that were chipped or pealing. Verified. B: Edge seam that was chipped. Verified C. “Scratches" scores in flooring that appear to be made by a utility knife. Verified

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.

Note: The repair to the majority of the project led to some repeat problems such as not providing a 1⁄4” gap to the wall throughout the project. I found one “scratch” which was most likely caused during repair and in new location from the JSI. This also occurred with one edge chip found in new location from JSI. Note: After I left the inspection, the police were called and the respondent claims he is pressing charges against the complainant for assault on his employee and damage to his truck. Bullhead City police department, officer Baroldy, contacted me. I requested officer Baroldy’s synopses and department report number for the incident.

13. On September 12, 2022, the ROC issued a Citation against Respondent’s license for alleged violations of Arizona Revised Statutes (A.R.S.) 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. At hearing, Complainant testified on behalf of himself and presented the testimony of Vlad Volny. Respondent presented the testimony of Chuck Huseman, Richard Huseman, Andrew Benson, and Ruben DeWitt. Investigator Steve Philpott testified regarding Investigator White’s investigation of the complaint.

17. Investigator Philpot agreed on cross-examination that the photographs taken by Investigator White took during his initial job-site inspection show that he used a measuring tool to determine whether 1/4th inch gap to the wall. Investigator Philpot also agreed that the compliance inspection photos do not show that Investigator White used a measuring tool. However, Investigator Philpot stated that from looking at the compliance inspection photograph, it appeared as if there was no 1/4th inch gap to the wall. See the Hearing Audio Record (0900 2023-01-11).AAC at 27:00 minutes to 29:00 minutes.

18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 24, 2023, Respondent’s license was first issued on September 1, 2003, and is active. Such prior License record also shows that there is only one open complaint against Respondent’s license. Such prior License record also shows that one complaint was closed against Respondent that was resolved or settled by Respondent, or withdrawn by the complainant, after the issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction. See A.R.S. § 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.

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).

4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 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 items listed in the ROC’s Directive without valid justification, which is a 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 Rainbow Tile and Carpet, Inc.’s license number 188745 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. sections 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, April 24, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Jeffrey Pagenkopp

[email redacted]

Sara Stark, Esq.

[email redacted]

Rainbow Tile and Carpet Inc

[email redacted]

Sheldon White

[email redacted]

Martín Quezada, Director

Registrar of Contractors

[email redacted]

By: OAH Staff