ALJDEC - Licensing

2022A-09824-CHC-ROC · Registrar of Contractors · 2023-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tia Maynard,

COMPLAINANT

v.

BRUCE MCAULEY LLC

License No. ROC 338202,

RESPONDENT

No. 2022A-09824-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 2, 2023

APPEARANCES: Complainant, Tia Maynard, appeared on her own behalf. Investigator Albert Bernal appeared on behalf of the Registrar of Contractors. Bruce Mcauley appeared on behalf of Bruce Mcauley LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

_____________________________________________________________________

FINDINGS OF FACT

BRUCE MCAULEY LLC (Respondent) is the holder of License No. 338202 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 7, 2022, Tia Maynard (Complainant) entered into a contract with Respondent for, among other things, installation of flooring.

On or about October 26, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Albert Bernal. After a jobsite inspection, Investigator Bernal issued a written directive to Respondent that provided as follows:

Complaint Item: - 2) Flooring incorrectly spaced and not snapped in in several rooms not installed correctly

Investigator’s Observation: I observed pieces of flooring that were installed in several areas of the floor. These were small pieces of flooring that appeared to be used as fillers in some areas near various door corners. These flooring pieces were not clicked and / or locked in place and there is also excessive space in between the adjacent flooring edges.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: - 6) Damage to doors, door jams, walls

Investigator’s Observation: I noted that the door jambs and door trim cuts were inconsistent. Caulk was used to cover the spacing / gap between the flooring planks and the door trim however, the caulking applied to those areas was inconsistent as well.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: - 8) calking on flooring and in grooves

Investigator’s Observation: I noted the caulk application was inconsistent and smeared on various floor areas. Caulking was used to cover along the floor perimeter of the kitchen cabinets and kitchen island and its application was inconsistent. Per installation manufacturer instructions “A required gap width of 1⁄4” is required around the perimeter of the floor and between the floor and all vertical obstructions”.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

All errors in original.

Following the issuance of the written directive, no corrective work was performed by Respondent. After the deadline in the directive expired, Investigator Bernal was notified no corrective work had been performed by Respondent.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Bernal testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite General Notes

Complainant testified she concurred with Investigator Bernal’s testimony, Written Directive, and the Compliance Jobsite General Notes. She further testified after Respondent failed to complete the project; after the deadline in the directive expired, Claimant hired several other contractors in an attempt to repair the work. Of the original contract amount Claimant paid Respondent $1,300.00.

Respondent testified the total contract amount was $2,600.00 of which he confirmed he received $1,300.00 from Complainant. He further testified the invoice reflected two payments one in the amount of $1,200.00 and one in the amount of $100.00. The $1,300.00 were adjustments made to zero out the project invoice.

Administrative notice was taken of Respondent’s License No. 338202 which was first issued on May 13, 2022, and was suspended on June 12, 2023, due to a disciplinary action. Respondent’s License record reflects that there was 6 open complaints and 1 resolved/settled complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Respondent’s suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See Ariz. Rev. Stat. § 32-1154(D).

Complainant bears 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, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 338202 for a period of 7 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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, June 22, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Tia Maynard

[email redacted]

Bruce McAuley LLC

[email redacted]

By: OAH Staff