ALJDEC - Licensing

2022A-09259-CHC-ROC · Registrar of Contractors · 2023-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph Dempsey and

Amir Hachem,

COMPLAINANTS,

v.

Redi Carpet Sales of Arizona, Inc.

License No. ROC 169427,

RESPONDENT.

No. 2022A-09259-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2023

APPEARANCES: Complainants Amir Hachem and Joseph Dempsey appeared on their own behalf. Respondent Redi Carpet Sales of Arizona, Inc. failed to appear. Arizona Registrar of Contractors Investigator Michael Springer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Redi Carpet Sales of Arizona, Inc. (“Respondent”) is the holder of License No. 169427 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about September 16, 2020, Amir Hachem and Joseph Dempsey (“Complainants”) contracted with Respondent for Respondent to remodel the shower in the primary bathroom of their home.

On or about October 11, 2022, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Michael Springer. After a November 4, 2022 Jobsite Inspection, at which Respondent was not present, Investigator Springer 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 November 21st, 2022.

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

Compliance Item: 1 - The project was for a remodel of the primary bathroom shower. The grout had failed by cracking and permitting water to

enter the walls via the shower pan and walls. Contractor came out to the home to demo the lower portion of the shower walls and shower pan, but will not return to properly fix the shower. They requested that we have a plumber inspect to advise the leak is not plumbing related. We paid for a plumber to inspect, and it was confirmed the leak is not plumbing related.

Investigator’s Observation: Shower has tile and backer board removed from the bottom 12 inches of the shower walls. I cannot verify a leak at this

point. 3rd party plumbing inspection provided by Complainant found no leaks from plumbing fixtures. Shower should be finished and leaked checked.

After the deadline in the Written Directive, Investigator Springer contacted Complainants and was informed that Respondent did not perform any corrective work.

Thereafter, Investigator Springer forwarded the matter to the Registrar’s Legal Department. 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).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing of this matter was scheduled to convene on February 1, 2023, at 9:00 a.m. On the date and at the time set for hearing, Complainants appeared on their own behalf. Investigator Springer was also present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Springer testified consistently with his findings contained in the Written Directive and referenced photographs taken during the Jobsite Inspection depicting the state of the project. Investigator Springer explained that Respondent removed the tile to investigate the source of the leak, and instructed Complainants to hire a plumber to further investigate the cause of the leak. Complainants did so and were advised by a plumbing contractor that the leak is not attributable to the plumbing. Thereafter, Respondent would not return to the jobsite to complete its scope of work.

Complainants concurred with Investigator’s Springer’s testimony and findings.

Administrative notice is taken of Respondent’s prior License record on February 16, 2023. Such prior License record reflects that Respondent’s License No. 169427 was first issued on October 26, 2001, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants 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 complete the corrective work following the Written Directive being issued. Therefore, Complainants 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. 169427 for a period of seven (7) days.

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 (30) 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)(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, February 17, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Joseph Dempsey and

Amir Hachem

[email redacted]

Mike Springer

[email redacted]

Redi Carpet Sales of Arizona, Inc.

[email redacted]

By: OAH Staff