ALJDEC - Licensing
2022A-09499-OMC-LS-ROC · Registrar of Contractors · 2023-03-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ann Mazuroski ,
COMPLAINANT
v.
Perma Glaze Inc
License No. ROC 126971,
RESPONDENT
No. 2022A-09499-OMC-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 24, 2023, 9:00 A.M.
APPEARANCES: Complainant Ann Mazuroski appeared on her own behalf; Dale Young, CEO/Owner .appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Perma Glaze, Inc. (Respondent), is the holder of License Number 126971 issued by the Registrar of Contractors (Registrar).
2. On or about October 2022, Ann Mazuroski (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with countertop refinishing by Respondent at a residence in Green Valley, Arizona (“project”). The Complaint reflected a contract amount of $2,600.00.
3. The Registrar performed an inspection of the project on November 3, 2022. Thereafter, the Registrar issued a Directive, dated November 3, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 1, 2022, as follows:
Compliance Item: 2 - The kitchen countertop around the sink has a black area that is not the color that was chosen.
Investigator’s Observation: Verified: at time of investigation, I observed an area of finish discoloration on the counter behind the kitchen faucet.
Compliance Item: 3 - The countertop service is rough and I was given a piece of sandpaper and told I could fix it with the sandpaper
Investigator’s Observation: Verified: at time of investigation, I observed multiple areas of rough finish in the kitchen and bathroom/s countertops.
Compliance Item: 4 - The master bathroom sink does not have the same amount of clear coat all the way around.
Investigator’s Observation: Verified: at time of investigation, I observed an area of poor clear coat coverage in the master bathroom sink area.
Compliance Item: 5 - The coating around both bathroom faucets is not the same color as the rest of the countertop.
Investigator’s Observation: Verified: at time of investigation, I observed multiple areas of rough and inconsistent coverage around the faucets in the bathrooms.
Compliance Item: 7 - Wall damage in the kitchen where the coating was sprayed and the area was not taped off.
Investigator’s Observation: Verified: at time of investigation, I observed an area of overspray on the kitchen wall just beyond the backsplash.
Compliance Item: 8 - Faucets were not taped properly and so there is product on my brand new faucets in the kitchen, bathrooms, and on the soap dispenser in the kitchen.
Investigator’s Observation: Verified: at time of investigation, I observed what appeared to be overspray on the kitchen faucet and bathroom/s faucets.
Compliance Item: 10 - Overspray on the over-the-toilet cabinet in the master bathroom and also on my black stove. Damage to my dishwasher from the product that damaged the surface.
Investigator’s Observation: Verified: at time of investigation, I observed multiple areas of overspray on the cabinet, stove and top of the dishwasher door.
Compliance Item: 11 - In the master bathroom, the sink was not wiped out before the clear coat was applied and there was hair seen in the coating. I was able to remove some of it before it dried.
Investigator’s Observation: Verified: at time of inspection, I observed a long hair imbedded in the clear coat of the master bathroom sink.
4. When the Registrar was informed on December 2, 2022, that Respondent had not contacted Complainant or performed any corrective work prior to the Directive expiration date, the Registrar then issued a Citation to Respondent, dated December 14, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to perform work in a professional and workmanlike manner);
b. A.R.S. §32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
c. A.R.S. §32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, dated January 11, 2023, that set a hearing for February 23, 2023, at 9:00 A.M.
6. At the February 24, 2023, hearing, Complainant Ann Mazuroski testified on her own behalf; Dale Young testified on behalf of Respondent. Arlo Houston, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 44. No exhibits were submitted on behalf of Respondent.
7. The Investigator testified on behalf of the Registrar from Investigator Manny Bermudez’s notes, who was the investigator that performed the initial inspection of the job site and issued the Directive. He testified further that his direct involvement with this matter consisted of a pre-hearing job inspection on February 16, 2023, at which time he observed that all Directive items were unchanged. He testified the contract between the parties was missing an estimated completion date and the written notice regarding rights to file a complaint with the Registrar.
8. Complainant Ann Mazuroski testified consistently with her written chronology, (Complainant’s Exhibit 1), and her photographs. (Complainant’s Exhibits 4 - 36). She testified the contract amount was $2,600.00. (Complainant’s Exhibit 3). She stated the last time someone from Respondent came out to the job site was September 16, 2022.
9. Dale Young testified on behalf of Respondent that he did not perform any of the work but that he observed the work at the job site inspection and that he considered it to be a “nice” job. He testified further that color deviations were normal because the process was abstract, the job would never be perfect, and that he believed that Complainant did not have realistic expectations. He did not address any of the specific Directive items. He stated he could not complete the directive items because his license had not been renewed due to financial difficulties.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on September 3, 1997, was renewed through September 30, 2021, and which appears to have expired as of October 3, 2022.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The expired status of Respondent’s license does not deprive Complainant of her right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
22. Failure 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....
6. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
7. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein including the following information:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(3) for the failure to perform work in a professional and workmanlike manner. Respondent presented no evidence to dispute the existence of the Directive items and the testimony that the refinishing process was abstract and not perfect is insufficient to rebut Complainant’s testimony.
9. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A). Respondent’s contract failed to include the date the parties entered into the contract, the estimated date of completion, and notification of Complainant’s right to file a complaint with the Registrar.
10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent made no contact with Complainant during the Directive period nor was there any evidence presented of a valid justification for the lack of contact or the lack of corrective action. The fact that Respondent had failed to renew its license, the correction of which was completely within the control of Respondent, was not a valid justification for failing to perform corrective work.
11. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Perma Glaze, Inc.’s, License Number 126971 is suspended for five days.
IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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 the 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, March 16 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Perma Glaze Inc., Respondent
150 S. Camino Seco #108
Tucson, AZ 85710
[email redacted]
Ann Mazuroski, Complainant
155 W. Calle De Las Profetas
Green Valley, AZ 85614
[email redacted]
By: OAH Staff