ALJDEC - Licensing

2023A-06245-RFA-LS-ROC · Registrar of Contractors · 2024-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffery Shirey,

COMPLAINANT

v.

MAYA TILE & DESIGN LLC

License No. ROC 333555,

RESPONDENT

No. 2023A-06245-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING:

APPEARANCES:

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE:

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar)” issued License Number 333555 to Maya Tile & Design, LLC (“Respondent”).

On or about June 1, 2023, the Registrar received a Complaint against Respondent from Jeffery Shirey (“Complainant”) alleging poor work with respect to Respondent’s contracted scope of work. Respondent’s scope of work pursuant to the terms of the parties’ contract, as it relates to the instant matter, included tile and grout installation in the primary bathroom shower.

As a result of the Complaint, 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), A.R.S. § 32-1154(A)(17), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In the November 6, 2023 Decision, Administrative Law Judge Brian Del Vecchio considered Respondent’s arguments and concluded that Respondent violated all of the charged provisions of this State’s contracting laws.

On November 28, 2023, the Registrar issued a Final Administrative Decision and Order accepting the November 6, 2023 Decision and imposing a five day suspension, as well as a $500.00 civil penalty and a $1,000.00 civil penalty. The effective date of that Order was January 7, 2024.

Complainant thereafter filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of performing the corrective work. As part of the claim process, Complainant submitted bids from licensed contractors that Complainant had received to perform the repair to the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $4,035.82. Respondent requested a hearing, believing the award was too high. Complainant did not contest the amount of the administrative award. The Registrar referred the matter to the Office of Administrative Hearings for an evidentiary hearing.

A hearing was held on May 23, 2024.

Hearing Evidence

The Written Directive from the Registrar specified the following in pertinent part:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A). . . .

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.

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.

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.

All errors in original.

At the Compliance Jobsite Inspection, it was determined as follows:

Compliance Findings: The grout in the shower floor was still the same color it was at the inspection. There has been no progress on that complaint item.

Complaint Item: Grout is coming out of the floor tiles

Investigator’s Observation: This item has been taken care of.

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: The nice has been repaired and is no longer leaking

Complaint Item: Shower floor has different colored grouts used as well as shower walls

Investigator’s Observation: No change

Complaint Item: Several places of cracked or missing grout inside and outside of shower

Investigator’s Observation: Grout has been added to the cracks around the shower.

This complaint will be forwarded to the Registrar’s legal department and a citation may be issued.

All errors in original.

Gail Mathews, Legal Assistant II and Claims Reviewer for the Fund, testified that she reviewed the Complaint, Jobsite Inspection Notes, photographs taken at the Jobsite Inspection, the Written Directive, the Compliance Jobsite findings, and the Administrative Law Judge Decision.

Ms. Matthews verified that Respondent was properly licensed at the time it contracted with Complainant. Ms. Matthews also reviewed the letter from Respondent’s bonding company, the deed to the property, the county assessor’s records, and bids submitted by Complainant, in determining that Complainant was eligible to file a claim with the Fund and in calculating Complainant’s actual damages.

Ms. Mathews testified that her calculations took into account the contract price of $27,992.44, and the payments made toward the contract price in the amount of $27,992.44, and concluded that there was no remaining balance on the contract.

Initially, Complainant submitted two bids that encompassed repairs to the entire shower, however, because the remaining items of Complaint to be repaired only referenced the shower floor, the Registrar requested that Complainant submit additional bids in line with the work that remains to be performed. Ms. Mathews concluded that the bid of $4,035.82 from Manco Construction for repair of the project was appropriate. Therefore, Ms. Mathews recommended a payout from the Fund to Complainant in the amount of $4,035.82.

Samuel Dominguez, Respondent’s owner, testified that he requested a hearing because the only outstanding item is the grout on the shower floor, and he believes there is a less expensive solution. Mr. Dominguez asserted that the grout is simply dirty and needs to be cleaned. Mr. Dominguez testified that there are companies that specialize in cleaning grout and proposed that “instead of demo and reinstallation” that the grout be cleaned by a professional grout cleaning company, which would be less expensive than the proposed award. However, the Administrative Law Judge Decision, which was accepted by the Registrar and has become final, set forth the following in Conclusion of Law Number 5 regarding Respondent’s assertion that the issue with the grout is attributable to being dirty:

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.

Complainant agreed with the Registrar’s presentation at hearing and agrees with the proposed award amount.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[t]he residential contractors' recovery fund is established, to be administered by the registrar, for the benefit of a claimant damaged by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter.” The Registrar’s final decision in the underlying workmanship case giving rise to the instant matter establishes that Respondent’s work violated the sections of A.R.S. § 32-1154(A) that were charged in the Citation.

For the purposes of an award under A.R.S. § 32-1132(A), A.R.S. § 32-1133.01(B) provides as follows:

An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:

May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

When the Registrar has calculated the amount of a complainant’s compensable damages and proposed a payout from the Fund to which s/he is entitled, the calculation is a prima facie showing of the amount that the complainant is entitled to recover as a payout from the Fund. In this case, Respondent requested a hearing challenging the Recovery Fund payout.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

After review of all the evidence, the Tribunal concludes that Complainant is eligible for an award from the Fund and that the award proposed by the Fund accurately reflects Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $4,035.82.

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED that on the effective date of the final Order in this matter, the Residential Contractors’ Recovery Fund shall pay $4,035.82 to Complainant Jeffery Shirey.

IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $4,035.82, plus interest at a rate of ten percent a year, to Respondent Maya Tile & Design, LLC’s License Number 333555.

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, June 5, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Tom Cole

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Jeffery Shirey

11836 W Daley Ct.

Sun City, AZ 85373

[email redacted]

MAYA TILE & DESIGN LLC

12328 N B St

El Mirage, AZ 85335

[email redacted]

By: OAH Staff