ALJDEC - Licensing

2022A-09659-CHC-ROC · Registrar of Contractors · 2023-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Lou Tenney,

COMPLAINANT

v.

Unique Flooring LLC

DBA : Supreme Stone

License No. ROC 296426,

RESPONDENT

No. 2022A-09659-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2023

APPEARANCES: Complainant Patricia Lou Tenney appeared via Google Meet on her own behalf. Registrar of Contractors Investigator Cliff Corlett appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Unique Flooring LLC (Respondent) is the holder of License No. 296426 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 5, 2021, Patricia Lou Tenney (Complainant) agreed to have Respondent install quartz countertops in her kitchen and bathrooms. The total cost was to be $7,900.00. On that same date, Complainant paid $5,100.00 to Respondent.

On or about October 24, 2022, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Cliff Corlett. The jobsite inspection was performed on November 8, 2021.

Investigator Corlett then issued a written directive on November 9, 2021, 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 or before November 23, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Contract guaranteed that the granite counter tops would be installed within two weeks of completion of our cabinets.

Investigator’s Observation: Respondent should properly supply, fabricate and install the kitchen granite as described in 11/5/21invoice/contract # 153.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 2 - Cabinets were completed on June 14th, 2022 was sent to Kristin at 1:16 Pm to schedule the install. MANY dates were schedules and never kept.

Investigator’s Observation: Respondent should properly supply, fabricate and install the kitchen granite as described in 11/5/21 invoice/contract # 153.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 3 - I tried to be understanding due to unforeseen circumstances but the last 2 appoints. with a no shows broke the camels back.

Investigator’s Observation: Respondent should properly supply, fabricate and install the kitchen granite as described in 11/5/21 invoice/contract # 153.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

(All errors contained in the original).

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

Also on December 5, 2022, Respondent e-mailed an Answer to the Registrar, stating that, “[w]e are installing on the 17th.”

On or about December 21, 2022, a Notice of Hearing was issued setting a hearing on February 1, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Corlett testified as to the Registrar’s involvement and the above timeline.

Investigator Corlett testified that Respondent failed to appear at the Jobsite Inspection. Further, Investigator Corlett testified that only the plywood tops had been installed on the project.

Investigator Corlett testified further that based upon Respondent’s previous cases with the Registrar of Contractors, he gave Respondent the statutory minimum amount of time to comply with the Directive. Investigator Corlett testified that he contacted Complainant on November 30, 2022, to determine if Respondent performed any work. When Complainant stated that no work was completed, Investigator Corlett sent the case to the legal department.

In addition, when preparing his testimony for the hearing Investigator Corlett noticed that Respondent sent an e-mail on December 5, 2022 to the Registrar stating that the countertops would be installed on December 17, 2022. Investigator Corlett then confirmed with Complainant that the countertops were not installed.

Complainant testified that Respondent’s representatives were really nice people but they never did what they promised.

Complainant also testified that she requested that Respondent return her countertops as she paid for them and the price has nearly doubled since she purchased them in November 2021. Complainant testified that Respondent stated that they wanted to finish the project on December 17, 2022, but they failed to appear and she has not heard from them since.

The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, a Hearing Order was sent to Respondent on December 30, 2022 from the Office of Administrative Hearings.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on February 15, 2023. Such prior License record reflected that Respondent’s License No. 296426 was first issued on March 6, 2015, and reflected that there were five open complaint, including present complaint, and two disciplined cases in 2022.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s 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); 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 preponderance of the evidence established that Respondent abandoned the project by failing to install the quartz countertops. Therefore, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(1).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Complainant testified that during the corrective work period, Respondent did not complete the project and further, did not complete the project on December 17, 2022 as stated to the Registrar. Therefore, Complainant 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 as well as the previous disciplinary record, it is recommended that on the effective date of the Order, the Respondent shall return the quartz countertops to Complainant within fifteen days. If that does not occur, the Registrar shall revoke Respondent’s License No. 296426. If the countertops are returned, then Respondent’s License No. 296426 shall be suspended for fifteen 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 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 15, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

Patricia Lou Tenney

2079 Gold Dust Dr

Lake Havasu City, AZ 86404

[email redacted]

Unique Flooring LLC

1680 Acoma Blvd W

Lake Havasu City, AZ 86403

[email redacted]

[email redacted]

By: OAH Staff