ALJDEC - Licensing
2023A-06245-CHC-ROC · Registrar of Contractors · 2023-11-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeffery Shirey ,
COMPLAINANT
v.
MAYA TILE & DESIGN LLC
License No. ROC 333555,
RESPONDENT
No. 2023A-06245-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 16, 2023
APPEARANCES: Jeffrey Shirey appeared on his own behalf. Samuel Dominguez represented Maya Tile & Design LLC.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
Maya Tile & Design LLC (Respondent) is the holder of License No. 333555 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 30, 2021, Jeffrey Shirey (Complainant) entered into a contract with Respondent for, among other things, installation of grout and tile in the master bathroom shower.
On or about June 1, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator John Chester. After a jobsite inspection, Investigator Chester 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 July 17, 2023.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: Shower nice was leaking and tiles were cracked. Grout also separated and caused more damage. (started repairs, but continues not showing up when they commit to come and finish the work)
Investigator’s Observation: Grout around shower seat is cracking, 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.
Complaint Item: Shower floor has different colored grouts used as well as shower walls
Investigator’s Observation: at time of inspection multiple colors of floor grout in shower, 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.
Complaint Item: Several places of cracked or missing grout inside and outside of shower.
Investigator’s Observation: At time of inspection crackling along window grout, 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.
Following the issuance of the written directive, the tile floor and leak issues in the bathroom had been repaired and only the shower issues remained. After the deadline in the directive expired, Investigator Chester conducted a compliance jobsite inspection, however, no repairs to the shower grout discoloration were completed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(17); and Ariz. Rev. Stat. § 32-1154(A)(22).
At hearing, Complainant testified on his own behalf and called Kristine Shirey to testify. Mr. Dominguez testified on behalf of Respondent. The Department’s electronic file, Complainant’s exhibits 1 through 18 and Respondent’s exhibits 1 through 3 were admitted.
Investigator Chester testified consistent with his jobsite inspection notes and compliance jobsite inspection notes. Samuel Dominguez told Investigator Chester at the jobsite inspection he would recolor the grout in the master shower, however, at the compliance jobsite inspection the incorrect color grout remained. Investigator Chester also testified Mr. Dominguez did not attend the compliance jobsite inspection due to scheduling error caused by the investigator. Investigator Chester emailed Mr. Dominguez to inform him the original compliance jobsite inspection scheduled for August 3, 2023; however, Mr. Dominguez never replied. After the initial communication regarding the compliance jobsite inspection date had been sent, a scheduling conflict arose and Investigator Chester rescheduled the compliance jobsite inspection for August 11, 2023. Investigator Chester did not inform Mr. Dominguez of the new compliance jobsite inspection because Mr. Dominguez did not reply to the original compliance jobsite inspection scheduling email. As a result Mr. Dominguez was not present for the August 11, 2023, jobsite inspection.
Complainant testified the shower floor grout color was chosen prior to contracting, however, the color installed was not the selected color. Complainant testified that at the time of installation, Complainant addressed several workmanship issues including leaking water from improperly installed silicone, cracked tiles, and the discoloration of the master bathroom shower grout. Most notably, the edge and corner of the shower appeared to have an off white color grout installed, not the color agreed upon in the contract.
Mr. Dominguez testified multiple layers of hard water stains and soap remnants lightened the color of the grout over time. The shower was oversized, the back of the shower was at such a distance as to not have water splash or land on that grout. The color of the grout on the opposite side of the showerhead did not match the showerhead side of the shower because no soap or water sediment could accumulate in that grout. After the written directive was issued, Mr. Dominguez personally repaired the leaking and cracking issues and had a conversation with Complainant in which he was informed the color of the grout changed because of the hard water and soap remnants. Mr. Dominguez attempted to clean the grout, but after nearly two years of use there were so many layers of hard water deposits and soap remnants, the color did not drastically change once cleaned. At the time, Complainant allegedly accepted the explanation of the discoloration and agreed to have the grout cleaned. Because Investigator Chester failed to notify Mr. Dominguez of the rescheduled compliance jobsite inspection, he did not attend the inspection and discuss the hard water and soap remnant solution.
Administrative notice is taken of Respondent’s License record on October 31, 2023. Respondent’s License No. 333555 was first issued on June 2, 2021, and has been inactive since May 18, 2022. Respondent’s 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.
Respondent’s inactive license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Here, the photos taken in 2021 of the affected area show a discoloration of the grout which matched the similar nearly identical discoloration in the 2023 photos. While it may be true two years of hard water and soap remnants could contribute to the lightening of the grout over time, this does not explain the matching discoloration in the photos taken contemporaneously with the installation. No remedial measures were taken by Respondent following the installation of tile in 2021, thus the discoloration of the grout can be attributed to the original poor workmanship and not hard water and soap remnants. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent was contracting while its license was inactive. Respondent’s license was changed from active to inactive in May 18, 2022. Mr. Dominguez is the qualifying party on Respondent’s license. Mr. Dominguez admitted he personally completed the repairs after the written directive was issued on June 23, 2023, a year after Respondent’s license was inactivated. Therefore, Complainant established that Respondent was contracting while its license was inactive in violation of Ariz. Rev. Stat. § 32-1154(A)(17).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Respondent admitted no additional work regarding the discoloration occurred beyond an attempt to clean layers of hard water stains and soap remnants. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 333555 for a period of 5 days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E) and $1,000.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(F)
It is further recommended that if Respondent fails to pay the entire amount of the civil penalties 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. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, October 25, 2023.
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 6, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Jeffery Shirey
[email redacted]
MAYA TILE & DESIGN LLC
[email redacted]
By: OAH Staff