ALJDEC decisions subject to certification as final

2022A-05959-CHC-ROC · Registrar of Contractors · 2022-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebecca Ponce,

COMPLAINANT

Those Guys Flooring LLC

License No. ROC 296845,

RESPONDENT

No. 2022A-05959-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 5, 2022

APPEARANCES: Complainant Rebecca Ponce appeared on her own behalf. Ray Garcia, Owner and Qualifying Party, appeared on behalf of Those Guys Flooring LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Those Guys Flooring LLC (Respondent) is the holder of License No. 296845 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 19, 2021, Rebecca Ponce (Complainant) entered into a contract with Respondent for the demolition and installation of new flooring.

On or about July 21, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Doug Barrett. After a jobsite inspection, Investigator Barrett issued a written directive 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 08-29-2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 – Flooring peaked, flooring scratched, flooring buckling throughout house, bad installation.

Investigator’s Observation: Verified. I observed the flooring to be peaking/buckling at all joints throughout the entire house. The Complainant removed a section of flooring and it was discovered there was no underlayment installed. The manufacturer’s installation instructions state; “ Secondary Vapor Barrier is Required; For extra protection use six to eight mill poly sheeting on concrete slabs. Overlap seams twelve inches and tape seams with water proof duct tape” Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Barrett was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Barrett testified as to his observations of the project during the jobsite inspection.

Complainant testified that Respondent did not contact her regarding the corrective work until the date of the deadline set forth in the directive.

Mr. Garcia testified that he did not recall the date he contacted Complainant regarding the corrective work needing to be done. Mr. Garcia acknowledged there were workmanship issues as he was unaware the flooring required a moisture barrier for the installation..

Administrative notice is taken of Respondent’s prior License record on December 15, 2022. Such prior License record reflects that Respondent’s License No. 296845 was first issued on March 20, 2015, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in 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 Respondent’s License No. 296845 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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)(5), 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 40 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 15, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Rebecca Ponce

[email redacted]

Those Guys Flooring LLC

[email redacted]

Doug Barrett

[email redacted]

By-54864001

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-137160-45720000 Miranda Alvarez

Legal Secretary