ALJDEC decisions subject to certification as final

2022A-07194-CHC-ROC · Registrar of Contractors · 2023-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jack Barbacovi

COMPLAINANT,

Unique Flooring, LLC

DBA: Supreme Stone

License No. ROC 296426

RESPONDENT.

No. 2022A-07194-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2023

APPEARANCES: Complainant Jack Barbacovi (Mr. Barbacovi) appeared on behalf of himself. Kristen Arguello appeared on behalf of Respondent Unique Flooring, LLC (Unique Flooring).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

1. Unique Flooring holds license number 296426 issued by the Arizona Registrar of Contractors (Registrar).

2. Kristen Arguello is a member of Unique Flooring.

3. On or about March 27, 2022, Mr. Barbacovi and Unique Flooring entered into a residential remodeling contract.

4. On or about April 18, 2022, Unique Flooring started work.

5. On or about August 23, 2022, the Registrar received a complaint from

Mr. Barbacovi alleging poor workmanship on the part of Unique Flooring.

6. On or about September 8, 2022, Registrar Investigator Cliff Corlett conducted a job-site inspection.

7. On or about September 15, 2022, the Registrar issued a Directive to Unique Flooring that provided, in relevant part, as follows:

DIRECTIVE REQUIREMENTS

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

........................................................

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 or before October 15, 2022.

Compliance Item: 3 - Project had two sides, sink side and stove side. Sink side was poorly installed. Faucet not centered on sink

Investigator’s Observation: Faucet was off center. Faucets are typically located centered on this style sink unless otherwise specified. No drawing or specification to indicate the faucet was to be located in a non-typical location. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

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 - Project had two sides, sink side and stove side. Sink side was poorly installed. There is a large seam from front to back of the granite that the sink is on. (Sink seam is off center).

Investigator’s Observation: Countertop seams are typically located in standard locations. For kitchen sinks, those common locations are one seam at the center of the sink or two seams at equal distance from each side of the sink. Respondent’s installation has one seam to the left of center of the sink. Respondent stated that he used remnants to create this countertop. Nothing in Respondents, 3/27/22 invoice states the use of remnants or unusual seam placements.

RESPONDENT SHOULD PROPERLY REPLACE THE COUNTERTOP WITH SAME OR SIMILAR MATERIAL. ANY SEAM(S) SHOULD BE IN TYPICAL LOCATIONS.

**Note** Complainant has installed a stone backsplash after the countertop was in place. Respondent should exercise caution to minimize damage to the backsplash, however, Respondent is not responsible to repair/replace backsplash.

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.

........................................................

8. Mr. Barbacovi did not allow Unique Flooring access to his home to correct the items listed in the Directive.

9. On or about October 25, 2022, the Registrar issued a Citation alleging that Unique Flooring violated Arizona Revised Statutes (A.R.S.) section 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(A), and A.R.S. section 32-1154(A)(22).

10. Unique Flooring filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. A hearing was held on January 4, 2023.

13. Investigator Corlett testified consistently with his job-site inspection notes and the issuance of the Directive. Mr. Barbacovi testified on behalf of himself.

Ms. Arguello testified on behalf of Unique Flooring and presented the testimony of her husband, Victor Arguello.

14. Ms. Arguello explained that Unique Flooring attempted to immediately comply with the Directive, but Mr. Barbacovi denied Unique Flooring access to his home.

15. Mr. Barbacovi testified to the effect that he did not want Unique Flooring to perform correction work because Unique Flooring was irresponsible and unreliable.

16. Mr. Barbacovi admitted that he denied access to Unique Flooring after the Directive was issued.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. section 32-

1154(A).

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 section 5 (1960).

4. Construction is not a perfect art and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked. It is undisputed that Mr. Barbacovi denied Unique Flooring access to his residence to comply with the terms of the written Directive issued in this matter.

5. Therefore, this tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. section 32-1154(A)(3), namely, A.A.C. R4-9-108(A), and A.R.S. section 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

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 is forty days after the date of that certification.

Done this day, January 24, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Jack Barbacovi

208 Shaner Rd

Palmdale, CA 93551

[email redacted]

Unique Flooring, LLC

1680 Acoma Blvd W

Lake Havasu City, AZ 86403

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000