ALJDEC - Licensing
2022A-10035-CHC-ROC · Registrar of Contractors · 2023-08-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John-Aaron Lenhert ,
COMPLAINANT
v.
RAM TILE LLC
License No. ROC 333207,
RESPONDENT
No. 2022A-10035-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 19, 2023, 9:00 A.M.
APPEARANCES: Complainant John-Aaron Lenhert appeared on his own behalf; Robert McCrea, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Ram Tile, LLC (Respondent), is the holder of License Number 333207 issued by the Registrar of Contractors (Registrar).
2. On or November 2, 2022, John-Aaron Lenhert (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with tile work performed by Respondent at a residence in Prescott, Arizona (“project”). The Complaint reflected a contract amount of $20,512.00.
3. The Registrar performed an inspection of the project on December 16, 2022. A re-inspection was performed by the Registrar on January 17, 2023. Thereafter, the Registrar issued a Directive, dated February 24, 2023, requiring Respondent to remedy the following violations by appropriate means by March 24, 2023:
Compliance Item: 1 - *The items are pulled from a lengthy narrative*
The flooring is separating and coming apart at the seams
Investigator’s Observation: There are numerous locations throughout the installation that exhibit seam separation.
This floor is not installed in accordance with manufacturer specifications.
The specs call for a butt joint lap at adjacent runs to be no less than 8". There are locations throughout the installation that are far less than 8" of lap. The kitchen appears to be the worst area however the condition is throughout. This could very well be compromising the integrity of the floor.
The respondent is to correct the condition in an appropriate manner.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
Compliance Item: 2 - Poor work, unfilled holes and gaps at the door trim.
Investigator’s Observation: The door trim is has poorly done miter
joints and nail holes everywhere are not filled and sanded.
The installation of this trim is outside of the scope of the respondent’s license and he cannot correct this condition
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
Compliance Item: 3 - Floor Trim and baseboard
Investigator’s Observation: In numerous locations, the base is not
attached to the wall. Nail holes in the base are not filled and sanded.
Butt joints at long runs are poorly done. Areas of base are missing.
In the kitchen, quarter round has not been installed.
The respondent is to correct the condition in an appropriate manner.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
Compliance Item: 4 - Fireplace is not completed
Investigator’s Observation: A fireplace box has been framed and there is a unit installed. This installation is not complete and a permit would be required for this.
I consulted with the city of Prescott and there is no open permit on record with the city. The framing and installation of the fireplace insert is outside of the scope of the respondent's license and he cannot complete the fireplace.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
Compliance Item: 5 - RAM Tile does not have the right license for the work
Investigator’s Observation: The respondent holds a CR-48 Ceramic, Plastic and Metal tile license. The respondent can install this type of flooring. By contracting and installing door trim and a fireplace with framing, the respondent is operating outside of the scope of his license.
The door trim would require a CR-60 Finish Carpentry license as would the fireplace wall. A CR-39 Plumbing license would be required for the piping and connection of the gas fireplace insert. The respondent is to only contract within the scope of his license in an appropriate manner.
Governing Rule: Knowingly contracting beyond the scope of the
license or licenses of the licensee.
Compliance Item: 8 - Material has been left on the front porch exposed to
the elements
Investigator’s Observation: There is material left on the porch and it
has gotten wet from snow. The respondent is to correct the condition in an appropriate manner.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
4. After being told by Complainant that Respondent had not completed the corrective action, the Registrar then issued a Citation to Respondent, dated March 29, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) 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)(16) (knowingly contracting beyond the scope of the license;
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing that after a continuance set a hearing for July 19, 2023, at 1:00 P.M. At the July 19, 2023, hearing, Complainant John-Aaron Lenhart testified on his own behalf. Respondent presented the testimony of Robert McCrae. The Registrar Investigator, Jim Dimond (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s unlabeled exhibits submitted on July 12, 13, and 18, 2023. No exhibits were submitted on behalf of Respondent.
6. The Investigator testified on behalf of the Registrar consistently with his job inspection notes and the photographs he took. He testified that Respondent contracted beyond the scope of its CR-48 tile license and could not perform door trim work and fireplace work. He further testified that he attempted to do a pre-hearing inspection but could not due to Complainant’s schedules; therefore he was unable to examine any corrective work Respondent had performed. He also stated he contacted the city of Prescott who indicated there was no record of a permit.
7. Complainant John-Aaron Lenhart testified, as herein relevant to the Citation, that Respondent was hired for tile work without a written contract but also did door and window trim and a fireplace replacement. He stated the quality of work was terrible from the outset and that he gave Respondent more time than required under the Directive to allow for corrective work. He admitted that Respondent replaced flooring in the kitchen, half to two-thirds of the hallway, and the living room as part of the corrective work. He stated Respondent never reattached base board or filled in the holes.
8. Robert McCrea testified on behalf of Respondent, as herein relevant to the Citation, that he had difficulty accessing the property and that other contractors were in the area where he was to do work. He further testified he was denied access at least five items and had texts to prove it, but he did not submit those texts as evidence. He stated he did not know taking off door trim in connection with tile work was beyond the scope of his license, and that he referred an electrician to do fireplace. As corrective work, he stated he replaced flooring in kitchen, dining room, living room, hallway, and guest bedroom.
9. Administrative notice is taken of Respondent’s prior license record as of today’s date. Such prior license record reflects that Respondent’s License No. 333207 was first issued on April 30, 2021. Such prior license record also reflects this case as its only open case and no previous disciplined or resolved/settled cases.
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. 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 acts:
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3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
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22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, 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 the following nine items:
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....
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a). The evidence reflected that with regard to Complaint Item No. 1, Respondent at the very least replaced flooring in the kitchen, half to two-thirds of hallway, and the living room, but that other flooring was not replaced or repaired. Evidence further reflected that Complaint Item Numbers 2 and 3 were not corrected. Complainant did not meet its burden with regard to Complaint Item Nos. 4 and 8.
8. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the written contract and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(12). The evidence was undisputed that there was no written contract between the parties, and that the amount of the contract was in excess of $1,000.00.
9 A.R.S. § 32-1154(A)(16). Complainant has not presented sufficient evidence to demonstrate that Respondent knowingly contracted beyond the scope of its license. Consequently, Respondent should not be disciplined for a violation of A.R.S. § 32-1154(A)(16). While the evidence reflected that Respondent contracted beyond the scope of its license, the evidence was lacking to show it was done “knowingly.” Mr. McCrea testified he was unaware that removal of door trim in connection with installing tile was beyond the scope of his CR-48 license. Further, as there was no written contract for this project, there was no evidence presented with regard to fireplace work to show that Respondent knowingly exceeded the scope of its license, or for that matter, to what extent Respondent worked on the fireplace.
10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform all corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There was no dispute that Respondent did perform some corrective work. However, there was insufficient evidence presented to show that Respondent was denied access as claimed by Respondent or otherwise had a valid justification for failing to complete it.
11. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to establish cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(3) (with regard to Complaint Item Nos. 1, 2, and 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, Ram Tile, LLC’s, License Number 333207 is suspended for two (2) 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 created or 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, August 8, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
RAM TILE LLC
[email redacted]
John-Aaron Lenhert
[email redacted]
By: OAH Staff