ALJDEC - Licensing

2022A-10977-CHC-ROC · Registrar of Contractors · 2023-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Judith Cosme,

COMPLAINANT

v.

Designer Tile Inc.

License No. ROC 135176,

RESPONDENT

No. 2022A-10977-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 9, 2023

APPEARANCES: Complainant Judith Cosme appeared on her own behalf. Ramon De Jesus, Member and Qualifying Party, appeared on behalf of Respondent Designer Tile Inc., which was represented by Gordon S. Bueler.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Designer Tile Inc. (Respondent) is the holder of License No. 135176 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 9, 2022, Judith Cosme (Complainant) entered into a contract with Respondent for the installation of tile.

On or about November 30, 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 Chris Fultz.

On or about January 24, 2023, after a jobsite inspection, Investigator Fultz 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 February 24th 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Grout is disappearing in every room

Investigator’s Observation: The grout was soft and not applied properly.

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 - Soft grout in every room

Investigator’s Observation: Grout not installed properly.

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 - Lippage in every room

Investigator’s Observation: There were a few locations noted that have lippage issues. All orange marked locations need to be addressed.

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: 6 - Chip and cracked grout every room

Investigator’s Observation: Locations were noted showing chipped and cracked tile installed in the home.

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: 8 - Concrete on aggregate front door and driveway

Investigator’s Observation: This needs to be addressed.

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: 13 - Tile was not put Under the dishwasher which we talked about. There is still left over tile under the dishwasher.

Investigator’s Observation: The tile under the Dishwasher had not been completed.

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: 14 - Master bath and hallway bath tile has not been completed

Investigator’s Observation: These areas had not been completed.

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: 15 - Formal dining room grout is going over the edge of the tile. White thin set also is on the grout and tile

Investigator’s Observation: This area needs to be addressed.

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.

On or about February 2, 2023, Investigator Fultz issued an amended written directive to Respondent that left the due date the same, but added the following compliance item:

Compliance Item: 5 - UN even floor can be seen at base boards every room

Investigator’s Observation: The floor isn't level. There are some issues with base boards and the gaps. This will need to be addressed

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.

Following the issuance of the written directive and amended written directive, Respondent did not contact Complainant regarding the corrective work.

On February 24, 2023, the deadline in the directive, Mr. De Jesus attempted to call Investigator Fultz regarding the directive. When he was unable to reach Investigator Fultz, Mr. De Jesus went to the office of the Registrar and left a written message for Investigator Fultz that read as follows:

I attempted to reach Investigator, Chief and Asst Chief on this matter, but with no luck. Respondent is claiming they just received this written directive in the mail and would like to talk with someone because the deadline is today. He would like for someone to reach him about this before its too late.

Exhibit A. All errors in original.

After the deadline in the directive expired, Investigator Fultz was notified no corrective work had been performed.

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).

Investigator Fultz testified that the notices regarding the jobsite inspection, the written directive, and the amended directive were sent to the address and email address on record for Respondent. Investigator Fultz stated that it was Respondent’s responsibility to maintain current contact information.

Complainant testified that she purchased the grout recommended by the person from whom she purchased the tile. Complainant denied that Respondent ever told her there was any problem with the grout she had purchased. Complainant stated that no one read the instructions of the grout prior to mixing the grout. Complainant testified that Mr. De Jesus told him he was not going to complete the work and she should file a complaint with the Registrar.

Mr. De Jesus testified that he did not receive notice of the jobsite inspection, the written directive, or the amended written directive. Mr. De Jesus stated that the email address Investigator Fultz had used was not current and he had been using a different email for approximately 10 years. Mr. De Jesus indicated he usually checked his physical mail once a week or every two weeks, but admitted that he may have gone three or four weeks around the time of the notifications at issue in this matter. Mr. De Jesus stated that he was willing to perform the corrective work if Complainant would allow it.

Administrative notice is taken of Respondent’s prior License record on May 23, 2023. Such prior License record reflects that Respondent’s License No. 135176 was first issued on May 26, 1998, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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).

A.R.S. § 32-1122(B) provides that a licensee must update the names and addresses of the officers, owners, and qualifying party within 30 days of a change.

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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Respondent’s failure to ensure its contact information was up to date, as required by the Registrar’s statutes, does not constitute a valid excuse for the failure to take any action with respect to the written directive. 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, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 135176 for a period of three 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)(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, May 23, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Judith Cosme

[email redacted]

Gordon S. Bueler, Esq.

Bueler Jones LLP

[email redacted]

Chris Fultz

[email redacted]

By: OAH Staff