ALJDEC - Licensing
2023A-04924-CHC-ROC · Registrar of Contractors · 2023-10-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
6110 Kachina LLC,
COMPLAINANT,
v.
Standard Flooring LLC,
License No. ROC 331286,
RESPONDENT.
No. 2023A-04924-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 29, 2023.
APPEARANCES: Attorney Stephan R. F. Holmquist represented 6110 Kachina LLC. Standard Flooring LLC failed to appear through any representative.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
___________________________________________________________________
FINDINGS OF FACT
Standard Flooring LLC (Respondent) is the holder of License No. 331286, CR-48 Ceramic, Plastic and Metal tile, issued by the Arizona Registrar of Contractors (Registrar, or ROC) in November 2020.
On April 26, 2023, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that there were hairline cracks throughout the mosaic tile and some tiles have slight movement (up and down). Complainant believed that this was due to heated floor system mat underneath the tile, with cushioning cups perhaps not completely filled in before the tile was installed.
Complainant contracted with Respondent for master bath tile work, including demolition of existing flooring, installation of a heated floor system, and installation of hand-crafted tile. Respondent’s detailed estimate comprises the parties’ contract; deposit money was paid to Respondent in July 2022.
After receiving the Complaint, Registrar’s Investigator Steve Klein conducted a jobsite inspection on June 23, 2023 and, thereafter, issued a Written Directive (Directive) on June 26, 2023 verifying that the complaint issues needed corrective work with a deadline of July 17, 2023.
The Directive noted the following to be corrected.
Complaint #1 Hairline cracks throughout the mosaic tile;
Inspector’s Observation: Verified cracks in the grout around tiles throughout the Bathroom.
• Respondent shall correct by the appropriate means.
Complaint #2 Some tiles have slight movement (up and down), most likely due to heated floor system mat underneath tile.
Inspector’s Observation: I verified movement in one area in the center of the bathroom. My opinion is the movement / flexing is causing the grout cracking throughout the bathroom.
• Respondent shall correct by the appropriate means.
Complaint #3 It appears that there is still some cushion and flex in the cups that is causing the mosaic floor to move. Contractor should have filled all the cups and smoothed out the floor prior to installing the mosaic flooring.
Inspector’s Observation: I verified movement in one area in the center of the bathroom. My opinion is the movement / flexing is causing the grout cracking throughout the bathroom.
• Respondent shall correct by the appropriate means.
The Registrar set forth July 17, 2023 as the deadline for Respondent’s compliance with the Directive.
While Respondent made some sample corrective work, the entire floor was not corrected by the deadline and Investigator Klein forwarded the Complaint for legal citation against Respondent.
The Registrar issued a Citation on July 21, 2023, charging Respondent’s license with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this 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.”
On August 6, 2023, Respondent filed an Answer to the Citation, indicating that it had followed the heating system manufacturer’s instructions and the answer outlined the steps taken. Respondent indicated disagreement with any workmanship issues and that it had gone out to correct some hairline cracks. Respondent indicated that it had not received any emails about the matter until August 2, 2023.
The Registrar noticed the matter for hearing. Although sufficient time was allowed for an appearance on the Virtual setting, Respondent failed to appear for the hearing. Additionally, the ROC Investigator also failed to appear.
David Wilcox coordinated the construction project at the home and had hired Respondent; he noted that Respondent had indicated he had experience with tile installation over heated floors. Mr. Wilcox noted that the tiles were unique and handcrafted. Mr. Wilcox opined that the lack of “mudding” to completely fill the cups on the heating system underlay was the cause of the cracks and tile movement and he noted that the sample efforts to fix the issues had not been successful.
Chis Domanico, a general contractor, had inspected the tile work on behalf of Complainant. Mr. Domanico testified that it had been a good, flat, installation of the unique tile. However, Mr. Domanico also opined that no efforts to correct hairline cracking would address the issue caused by the cups on the underlayment.
Administrative notice is taken of Respondent’s record with the Registrar, which reflects that Respondent’s License No. 331286 is suspended for lack of renewal. This case is the only open case with regard to Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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 preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Klein found workmanship violation issues existed at the time of the June 23, 2023 job site inspection, and that the issues had not been addressed by the Directive deadline.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of: Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner; and, in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar revoke Respondent’s ROC License 331286.
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, October 19, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Stephan R. F. Holmquist #030379
DSR & ASSOCIATES, P.C.
[email redacted]
Standard Flooring LLC
[email redacted]
By: OAH Staff