ALJDEC - Licensing

2022A-08795-CHC-ROC · Registrar of Contractors · 2023-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan Balius,

COMPLAINANT,

v.

Unique Flooring LLC dba Supreme Stone,

License No. ROC 296426,

RESPONDENT.

No. 2022A-08795-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2023.

APPEARANCES: Ryan Balius represented himself. Kristen Arguello represented Unique Flooring LLC dba Supreme Stone.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Unique Flooring LLC dba Supreme Stone (Respondent) was the holder of ROC License No. [number redacted], CR-48, Ceramic, Plastic and Metal Tile, issued by the Arizona Registrar of Contractors (“Registrar”) in August 2019; that license is in expired status as of September 1, 2022.

Respondent is also the holder of ROC License No. 296426, Specialty Dual CR-60 Finish Carpentry, issued by the Registrar in June 2015; the license is active, renewed through March 31, 2023. This license classification allows the licensee to install and repair millwork including the following: Cabinets, Counter tops, Case sash, Door trim, Metal doors, Automatic door closers, and Wood flooring.

On or about December 17, 2021, following a series of text messages documented from May 2022 forward, Respondent created its Invoice #168 for the project work for Complainant for the installation of an overhanging granite countertop on two island bases (one island was a BBQ on the patio and one island was in the pool being built). Complainant does not reside full time at the project location in Arizona; however, Complainant had previously seen Respondent’s workmanship and wanted Respondent to make the installation. Complainant had perused pictures of available granite slabs and had chosen the slab; the slab was located in Las Vegas. On a contract balance of $6,500.00, Complainant paid $3,250 on December 20, 2019.

The invoice states, in parts: all sales are final; no refunds on special order material or material only orders; and, granite/quartz installation is 10-12 weeks out.

On May 4, 2022, Complainant alerted Respondent to the BBQ/island being almost ready and he also inquired whether the slab was local “or still in Vegas?” Respondent then indicated that the slab was in Vegas because the Respondent did not have a big enough warehouse to store all its slabs; however, Respondent further indicated “since you are almost ready for it I’ll set up delivery for [their] next truck here.”

On May 16, 2022, Complainant advised Respondent that the BBQ base was ready, and Respondent advised that it would need to come by and make the template. Complainant then inquired whether Respondent had the slab and could they send him a picture? Respondent replied that the slab was “coming on [their] truck the 1st of the month.” Complainant advised that he would be at the project location again on Friday or Monday and Respondent indicated Monday would okay; however, on Monday, May 23, 2022, Respondent indicated that he could not get to Havasu that day.

As demonstrated by the text messages, multiple delays occurred in May and June, and Complainant continued, into July, to inquire whether the slab had arrived locally yet and when could Respondent do the template. On August 1, 2022, Respondent indicated that the slab should be with Respondent on Wednesday or Thursday; the August 5, 2022 messages indicate the lack of progress on the project. On August 12, 2022, Complainant indicated his dissatisfaction with the delays but that, despite the delays, he still wanted them to do the install because he believed in their installation work; Complainant requested that the work be done the next week or that his deposit be returned. On August 26, 2022, Complainant could see that Respondent had been there and Complainant requested confirmation whether the slab was at Respondent’s shop, wanting to come and see it. On September 12, 2022, Complainant’s messages indicated that he was still seeking confirmation that the slab was local.

On September 28, 2022, Complainant was still awaiting installation, and reminded Respondent that the islands had been ready for the installation “since May 11,” stating the following:

You told me back in July that if you did not have the job done by Aug 26 you would refund my money. Knowing how busy you are and unable to get my job done please just refund the deposit and we can go our separate ways.

On or about September 30, 2022, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent would not start the job or give him a refund.

Even though he had filed the Complaint, in the text messages on October 3, 2022, Complainant indicated to Respondent that if they would just do the install, he would withdraw the Complaint. Respondent’s response can only be called cryptic in saying because Complainant had “chosen” to file the Complaint, they would “just let it play out” with the Registrar. Complainant replied that he would withdraw if they would just do the install; Respondent replied that they had to complete a project by Friday and that any work for Complainant could “at best” be next week. Complainant replied:

Next week would be great. I will withdraw the complaint as soon as the install is completed.

Registrar Investigator Cliff Corlett conducted a jobsite inspection on October 17, 2022. At that time, Mr. Corlett noted that the parties agreed to postpone the Registrar’s action for two weeks to allow Respondent to perform the installation. Mr. Corlett noted that if the work was not performed he would issue the Directive. On November 2, 2022, Complainant notified Investigator Corlett that the work had not been done.

Investigator Corlett issued a written directive dated November 9, 2022 to Respondent that included the following directions regarding the instant matter:

After investigation, the Registrar has verified that you failed to meet 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 November 28, 2022.

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

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 – Will not start the job or if too busy give me a refund.

Investigator’s Observation: Respondent agreed at the 10/17/22 jobsite inspection to fabricate and install the BBQ countertops within 2 weeks. As of 11/28/2022 no countertops have been installed.

[RESPONDENT] SHOULD PROPERLY FABRICATE AND INSTALL THE

CONTRACTED BBQ COUNTER TOPS.

Governing rule: abandonment of a contract or refusal to perform

after submitting a bid on work without legal excuse for the abandonment or refusal.

On November 29, 2022, Complainant notified Investigator Corlett that the work had not been done.

On December 5, 2022, the Registrar issued a Citation against Respondent, charging possible violations: (1) Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1); and, (2) A.R.S. § 32-1154(A)(22).

Respondent’s Answer of December 20, 2022 stated:

Ryan was behind on his project and his contract says no refunds on special order material.

The matter was not resolved by the parties prior to an administrative hearing.

At hearing, Complainant reiterated the history, noting that, since the time the islands were ready in May of 2022, Respondent had not done the installation work. Complainant also reiterated that he had admired Respondent’s work and had simply wanted Respondent to get the install done. Further, Complainant was concerned that Respondent had not been properly bonded or licensed in December of 2019.

At hearing, Respondent argued that Complainant was trying to take advantage of the ROC statutes. Respondent noted that, “several times,” they had helped Complainant with the “configurations” and, so, they knew Complainant was “behind,” stating “so were we.” Respondent argued that, as a small company with Vic doing all the work, they fell behind but tried to rework Complainant in. Respondent’s representative could not provide the date that the slab came into their possession, indicating that, in summer of 2022, they had moved their shop/storage area to Bullhead leaving only a showroom in Havasu. Vic testified that they sent Complainant the picture when the slab came in.

Respondent further argued that this was a “financial” complaint, that there was no refund on special orders and, because they had not done any work, there can’t be any workmanship issues.

Administrative notice is taken of Respondent’s license records on this date. The Registrar’s record today reflects: (1) Four other open complaints against Respondent; (2) Respondent was suspended two times in 2022 on two cases; and (3) one other case was settled in March 2023.

CONCLUSIONS OF LAW

The Registrar has 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); Arizona Administrative Code (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 Administrative Law Judge may consider the Registrar’s administrative record. See A.A.C. R4-9-118.

The preponderance of the evidence shows that Respondent abandoned its contract with Complainant by failing to install the granite countertops, which is a violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence shows that Respondent failed to comply with the Registrar’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 Registrar’s Order, the Registrar shall revoke the License No. 296426 held by Unique Flooring, LLC dba Supreme Stone.

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 9, 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]

Ryan Balius

1325 Beefeater Ln

Lake Havasu City, AZ 86404

[email redacted]

Unique Flooring LLC

1680 Acoma Blvd W

Lake Havasu City, AZ 86403

[email redacted]

[email redacted]

Cliff Corlett

Registrar of Contractors

1845 McCulloch Boulevard, Suite B-5

Lake Havasu City, AZ 86403

[email redacted]

By: OAH Staff