ALJDEC - Licensing

2023A-00059-CHC-ROC · Registrar of Contractors · 2023-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Catherine Jaworski,

COMPLAINANT

v.

Staybility, LLC

License No. ROC 335708,

RESPONDENT

No. 2023A-00059-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 21, 2023

APPEARANCES: Complainant Catherine Jaworski appear via Google Meet on her own behalf. Dan Gibbons and Mike Kinkade appeared via Google Meet on behalf of Respondent Staybility LLC. Registrar of Contractors Investigator Steven Avila appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

______________________________________________________________________

FINDINGS OF FACT

Staybility LLC (Respondent) is the holder of License No. 335708 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 17, 2022, Catherine Jaworski (Complainant) signed a contract with Respondent for remodel of a bathroom in her residence for her aging parents. The contract amount was for $8,945.00.

On or about January 3, 2023, the Registrar received a Complaint containing fifteen items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Steven Avila. The jobsite inspection was performed on February 14, 2023.

Investigator Avila then issued a written directive on or about March 21, 2023 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 April 7, 2023.

. . .

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

Compliance Item: 2 - Due to uneven floor, round tiles are unevenly installed, creating lippage and areas of trip hazard

Investigator’s Observation: At the time of the inspection there was a row of round tiles that did not appear to meet the grout size pattern throughout the installation. Lippage in excess of 1/32 of an inch could be seen in multiple areas throughout the floor. Workmanship standard for straight installation states - Nominal centerline of all joints should be straight and even width, with due allowances for hand-molded or rustic tiles. Workmanship standard for ceramic tile lippage is as such - Lippage is to be no greater than 1/32” between individual tiles. Allegation is verified. Respondent shall correct by the appropriate means.

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 - Grout on floor tile has areas of "indentation" and small holes developing around uneven tiles

Investigator’s Observation: At the time of the inspection the grout between the floor tiles contained voids in multiple areas. Allegation is verified. Respondent shall correct by the appropriate means.

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 - Chunks of grout have flaked off around several floor tiles

Investigator’s Observation: At the time of the inspection the grout between the floor tiles contained voids in multiple areas. Allegation is verified. Respondent shall correct by the appropriate means.

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 - Grout on wall tiles has developed small holes in several areas

Investigator’s Observation: At the time of the installation there were cracks and voids in multiple areas throughout the wall tile installation. Allegation is verified. Respondent shall correct by the appropriate means.

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: 7 - There is lippage throughout wall tile installation that creates an undulating effect on the walls and seems to contribute to the grout holes

Investigator’s Observation: At the time of the inspection there were locations throughout the wall tile installation in which the lippage between adjacent tiles was in excess of 1/32 of an inch. Workmanship standards state - Lippage is to be no greater than 1/32” between individual tiles. Allegation is verified. Respondent shall correct by the appropriate means.

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 - Tile adjacent to electric outlet has a broken corner that was initially covered with grout and there is an open space between that tile and the outlet

Investigator’s Observation: At the time of the inspection there was a tile corner that appeared to have been cracked at installation as there was grout present in the crack. There was also a gap between the electrical cover and the adjacent tile at the time of the inspection. Allegation is verified. Respondent shall correct by the appropriate means.

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.

(All errors contained in the original).

On May 5, 2023, Investigator Avila performed a Compliance Jobsite Inspection. In his notes regarding the same he found:

At the time of the inspection the complainant stated that the respondent reached out on approximately April 4, 2023 This date would fall approximately 3 days prior to the expiration date on the written directive of April 7, 2023. Complainant stated that she requested the respondent perform repairs the following week due medical issues with her father. The two parties were then never able to come to a mutual agreement in regards to a date to make any repairs and the complainant also stated that she had concerns with the scope the respondent stated he would be performing. Subsequently the complainant requested a compliance inspection be performed.

Compliance Findings:

At the time of the inspection it was determined that no work has been performed in regards to the completion of the items listed on the written directive.

(All errors contained in the original).

On May 12, 2023, 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).

On or about May 26, 2023, Respondent timely filed an Answer with the Registrar.

On or about June 7, 2023, a Notice of Hearing was issued setting a hearing on July 21, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Avila testified as to his involvement and the above timeline.

Complainant testified on her own behalf and stated that she was looking for a bathroom that was easily accessible for her aging parents.

Complainant testified that smaller tiles were suggested for more grout which would provide better traction, so Complainant wanted to have her choice of tiles approved by Messrs. Gibbons and Kinkade prior to purchasing the same. Once they were approved and installed, Complainant noticed that several weeks later, grout began to come off.

Further, Complainant testified that on December 28, 2022, Mr. Kincade said he was done and was not going to work on the project any further.

In addition, Complainant testified that after the Written Directive was issued, Mr. Kinkade waited until April 3, 2023 to schedule the corrective work. Complainant stated that she was booked until April 13, 2023. At that point, Mr. Kinkade came out to look at the areas requiring remedying but did not commence the repair work. Rather, Complainant testified, Mr. Kinkade said he could start the repairs on May 8, 2023, however, Complainant refuse.

Dan Gibbons and Mike Kinkade testified on behalf of Respondent.

Mr. Kinkade testified that he did not approve the tile Complainant chose. As to the excessive lippage, this was due to not using self-leveling spacers. Mr. Kinkade testified that Complainant stated he did not have to be perfect.

As to the electrical outlet, Mr. Kinkade testified that the electrician moved the outlet box and that he put the faceplate back on. Mr. Kinkade testified that he saw a crack and notified Complainant about the same but that Complainant said she did not want a bigger faceplate.

Further, Mr. Kinkade testified as to the corrective work not being performed. He testified that he waited until April 3, 2023 to contact Complainant because he knew he had enough time to complete the repairs. Mr. Kinkade testified that he could start on May 8, 2023, but Complainant refused.

Dan Gibbons testified that he wished things would have been better.

Administrative notice is taken of Respondent’s prior License record on August 8, 2023 Such prior License record reflected that Respondent’s License No. 335708 was first issued on November 24, 2021, and reflected that there was 1 open complaint, namely the present complaint.

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 Vazanno 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’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.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Mr. Kinkade should not have waited over a week to contact Complainant to schedule the repairs, and due to his tardiness, Complainant was unavailable. 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. 335708 for a period of seven 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, August 7, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Staybility, LLC

14863 W Ashland Ave.

GOODYEAR, AZ 85395

[email redacted]

Catherine Jaworski

4105 W. Purdue Ave

Phoenix, AZ 85051

[email redacted]

By: OAH Staff