ALJDEC - Licensing
2023A-05693-CHC-ROC · Registrar of Contractors · 2023-11-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tony Kensinger
COMPLAINANT,
v.
Ever Lasting Tile Inc
License No. ROC 165725,
RESPONDENT.
No. 2023A-05693-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 13, 2023
APPEARANCES: Complainant Tony Kensinger represented himself. Jose Marquez represented Ever Lasting Tile, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about March 6, 2023, Complainant Tony Kensinger and Respondent Ever Lasting Tile, Inc. entered into contract wherein Respondent would install tile flooring in Complainant’s home, for the amount of $14,000.
2. Complainant paid Respondent $12,000 for the work.
3. On or about March 23, 2023, Respondent started work.
4. On or about April 24, 2023, Respondent stopped work.
5. On or about May 12, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Respondent.
6. Registrar Investigator Joey Chester conducted a job-site inspection.
7. On or about July 6, 2023, Investigator issued a Directive to Respondent directing Respondent to correct the following complaint items, by appropriate means, no later than 5PM on August 14, 2023:
Complaint Item 1: Tile was installed unevenly through entire house.
Investigator’s Observation: At time of inspection tile uneven throughout house with more than a 1/16th difference or more, respondent to determine the issue and fix by 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 2: Grout is inconsistent through entire house. Investigator’s Observation: At time of inspection, grout is above the tile in multiple areas. Also tiny holes in grout throughout areas of house. Respondent to fix by 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 3: Grout is discolored in many areas.
Investigator’s Observation: At time of inspection grout visibly discolored throughout, Respondent needs to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
8. Respondent failed to correct the items by the due date.
9. On August 15, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3), (A)(22), and Arizona Administrative Code (A.A.C.) R4-9-108(A).
10. Respondent filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. At hearing, Complainant testified on behalf of himself. Respondent presented the testimony of its qualifying party, Jose Marquez, and Gregory Brooks, the installer of the tile in Complainant’s home.
13. The parties agreed at hearing that the tile was defective. However, Mr. Marquez and Mr. Brooks stated that he obtained verbal consent from Complainant to continue installing the defective tile once discovered. Mr. Marquez stated that he verbally advised Complainant to purchase new tile. Complainant denied that
Mr. Marquez or Mr. Brooks advised him that eat tile was directive and that he should not have the tile installed.
14. Administrative notice is taken of Respondent’s prior License record on November 2, 2023. Such prior License record reflects that Respondent’s License No. 165725, was first issued on June 7, 2001 and Respondent has no disciplinary history. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
section 32-1154(A).
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 a preponderance of the evidence. See A.A.C. R2-19-119.
3. 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).
4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3). There was a dispute at hearing whether Complainant gave Respondent verbal consent to install the defective tile. Even if Complainant had given Respondent verbal consent, if the installation of the tile did not meet the Registrar’s workmanship standards, Respondent should not have performed the job without a written waiver signed by Complainant. Respondent did not obtain such a written warranty disclaimer in this case. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
6. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 165725 issued to Ever Lasting Tile Inc, for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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. section 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, November 2, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
Ever Lasting Tile Inc
[email redacted]
Joey Chester
[email redacted]
Tony Kensinger
[email redacted]
By: OAH Staff