ALJDEC - Licensing
2022A-06857-CHC-ROC · Registrar of Contractors · 2023-03-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Linda Jacobson,
COMPLAINANT,
v.
Joseph Robert Palma dba Flooring Specialist,
License No. ROC 330228,
RESPONDENT.
No. 2022A-06857-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
VIRTUAL HEARING: February 16, 2023.
APPEARANCES: Linda Jacobsen (Complainant) appeared. Respondent failed to appear. Registrar Investigator Vildusea failed to appear.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License No. 330228, CR-8, Floor Covering, issued by the Arizona Registrar of Contractors (Registrar) in August 2020.
The Registrar received Complainant’s Licensed Complaint Form (Complaint) containing a lengthy list of complaints, unnumbered, regarding an alleged incomplete home partial-remodel, abandonment of the project, and damaged property therein. Complainant indicated a contract date of March 4, 2022, a work start date of March 4, 2022, and work stop date of May 1, 2022. The attached written “contract” consisted of an Invoice [No. 15301] for $1,400.00 dated February 4, 2022 for installation [of flooring] in the kitchen and another room and “P.O.” Complainant also provided copies of four $700.00 checks made out to “Flooring Specialists.”
After receiving the Complaint, Registrar’s Investigator James Vildusea scheduled and conducted a job site inspection on September 23, 2022. Complainant’s neighbor, Greg Frithsen, and a HandyMan, Larry Kean, were present; Dan Palma was present for Respondent. Investigator Vildusea took multiple photographs during the inspection and included those photographs in his jobsite inspection notes.
At the time of the jobsite inspection, Investigator Vildusea noted that Respondent’s license was suspended (September 14, 2022).
During the jobsite inspection, Dan Palma admitted to Investigator Vildusea that he had conducted the removal of the popcorn ceiling and that “he did not paint the home.”
Based on the Complaint, and as he itemized in twenty (20) items during the jobsite inspection, following the jobsite inspection, Investigator Vildusea issued a Written Directive (Directive) on September 29, 2022 which verified Items #2, 10, 18, and 20. The Registrar set forth October 14, 2022 as the deadline for Respondent’s compliance with the Directive.
Item #2 was debris from destruction of popcorn ceiling left in between planks of the new wooden laminate flooring.
Item #10 was debris/dust throughout the home and on shelves, kitchen cupboards, and in bathroom.
Item #18 was thresholds/transitions and pieces of threshholds in multiple areas were now missing which had been in place prior to the work starting.
Item #20 was incomplete removal of the popcorn ceiling, along with poor workmanship of the plastering over that incomplete work (and some popcorn shows through).
The Registrar issued a Citation on October 19, 2022, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12) as to Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(16); Ariz. Rev. Stat. § 32-1154(A)(17); and, Ariz. Rev. Stat. § 32-1154(A)(22).
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 Section R4-9-108(A) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.
Ariz. Rev. Stat. § 32-1158 provides that contracts between the parties that are over $1,000.00 must contain, in writing, nine specific elements, including an estimated date of completion. Importantly, the statue provides that the contract set forth the following information in Bold 10-point type: the property owner’s rights to file a complaint with the Registrar for alleged violation of Ariz. Rev. Stat. § 32-1154 within the time frame set forth in Ariz. Rev. Stat. § 32-1155(A) and the Registrar’s telephone number and website.
Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for discipline knowingly contracting beyond the scope of the licensure.
Ariz. Rev. Stat. § 32-1154(A)(17) includes among the grounds for discipline the contracting or offering to contract or submitting a bid while the license is under suspension or on inactive status.
Ariz. Rev. Stat. § 32-1154(A)(22) includes suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this 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.” “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.”
On October 21, 20220, Respondent answered the Citation, indicating that he had made attempts to schedule repairs but also stating, in pertinent part:
I informed the complainant that we were only licensed to install the laminate he bought and that I could put him in touch with the other contractors for the additional work he requested as a courtesy. Flooring specialist did not paint the trailer and should not be responsible for any violation concerning the painting. The complaint has not shown any proof that were contracted to paint, only the invoice to install the laminate he provided.
The Registrar noticed the matter for hearing.
At hearing, Complainant indicated that they had decided to sell the home but then determined to move back into the home and began the remodeling updates. They met with Dan Palma and worked out an amount for the work, feeling Palma, therefore, had plenty of time to do the work before they were coming to Arizona. Complainant indicated that their neighbors, the Frithsens, had the key and would let the workers in and, thus were available to both check-up on the progress and update Complainant about the work.
Complainant admitted that Respondent did tell them he was only licensed to do the laminate but that he also told them they could contact other persons (i.e., for other work) and that they never got any information on other persons for the other work.
Complainant testified that, while Mr. Palma was indicating the work was “beautiful” and the home was move-in ready, the Frithsens were not providing such glowing reports. Complainant themselves were very upset about the condition of the home when they arrived. Complainant paid $800.00 for a cleaning person to clean the home and indicated that the cleaning person could not remove the debris from the new laminate.
Complainant’s husband, Wallace, testified that Respondent kept wanting more money for this and for that, and finally told Respondent that they would pay him when he was done. Complainant testified that Respondent wanted $1,400 for the floors and the total amount of $2,800 was supposed to include everything including the painting; she noted that, towards the end, Respondent said he would clean up the home for more money.
At hearing, Mr. Kean and the Frithsens testified about their opinions and/or observations of the condition of the home at the time of the jobsite inspection.
Administrative notice is taken of Respondent’s License record with the Registrar which reflects, as of this date, that the instant matter is the only open case and that Respondent was suspended on January 5, 2023 for two days.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Vildusea found four workmanship issues existed at the time of the September 23, 2022 job site inspection. The same workmanship issues remained uncorrected and, thus, the Registrar’s Citation was issued. Therefore, based on the Administrative Record, the Administrative Law Judge concludes that the Investigator-determined workmanship issues, and the written contract requirement issues, existed and, thus, Respondent is in violation of the following: Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12) as to Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16); Ariz. Rev. Stat. § 32-1154(A)(17); and, Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar revoke Respondent’s ROC License 320228.
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 Administrative Law Judge Decision. If the licensee accepts the Administrative Law Judge Decision, the Administrative Law Judge 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.
RECOMMENDED this day, March 8, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington St,, Ste. 105
Phoenix, AZ 85007
[email redacted]
Linda Jacobson
15301 N. Oracle Rd. Unit 7
Tucson, AZ 85739
[email redacted]
Joseph Robert Palma
DBA: Flooring Specialist
1657 Oak Shadows Dr.
Tucson, AZ 85737
[email redacted]
James Vildusea
Registrar Investigator
[email redacted]
By: OAH Staff