ALJDEC - Licensing

2023A-07823-CHC-ROC · Registrar of Contractors · 2023-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christine Barrett,

COMPLAINANT,

v.

Splinters Hardwood Flooring

and Supply, LLC

License No. ROC 323062,

RESPONDENT.

No. 2023A-07823-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 3, 2023

APPEARANCES: Complainant Christine Barrett appeared on her own behalf. Respondent Splinters Hardwood Flooring and Supply, LLC failed to appear. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Splinters Hardwood Flooring and Supply, LLC (“Respondent”) is the holder of License Number 323062 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about February 23, 2023, Christine Barrett (“Complainant”) contracted with Respondent for the installation of luxury vinyl plank (“LVP”) flooring in her home. The contract was verbal. Complainant paid Respondent a deposit in the amount of $5,500.00.

On or about July 11, 2023, the Registrar received a Complaint against Respondent from Complainant requesting the return of her deposit. The Complaint alleged that Respondent sent someone to Complainant’s home to move furniture, and that this individual convinced Complainant to have her existing hardwood floors sanded and refinished instead of installing LVP flooring. Thereafter, Complainant contacted Respondent to request a refund of her deposit. Respondent did not provide the requested refund.

The Registrar assigned the Complaint to Investigator David Fagerburg. Investigator Fagerburg testified that he did not conduct a Jobsite Inspection because Respondent did not perform any work. Investigator Fagerburg testified that after the Complaint was filed, the parties communicated and Respondent agreed to refund Complainant her deposit minus a restocking fee. Respondent failed to return any funds to Complainant. Investigator Fagerburg testified that he spoke with Respondent’s representative prior to forwarding the Complaint to the Registrar’s Legal Department, however Respondent made no attempt to resolve the matter with Complainant. Consequently, on August 24, 2023, Investigator Fagerburg forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(6) and A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158.

Investigator Fagerburg testified that Respondent was charged with a violation of A.R.S. § 32-1154(A)(6) because he took Complainant’s money and Complainant did not receive any services. Regarding the charge of violating A.R.S. § 32-1154(A)(12), Investigator Fagerburg testified that there was no written contract.

Investigator Fagerburg testified that he conducted a prehearing inspection on November 2, 2023. Respondent was not present. Investigator Fagerburg testified that work was being performed, however, not by an employee of Respondent, but rather a “1099 worker.” Investigator Fagerburg testified that he issued an “aiding and abetting” warning letter to Respondent.

Complainant testified that since filing the Complainant, she paid an additional $500.00 to Respondent for sanding materials, and on September 25, 2023, allowed Respondent to sand the floors and apply a clear coating. Complainant testified that there are “marks and scratches” on the flooring. The Administrative Law Judge informed Complainant that Respondent was not charged with workmanship violations, and therefore, the alleged deficiencies with the flooring could not be addressed at the instant hearing.

Investigator Fagerburg testified that because Respondent has performed work since the issuance of the Citation, the charge of A.R.S. § 32-1154(A)(6) may no longer be applicable. Complainant explained that because Respondent would not refund her money, she felt compelled to allow Respondent to perform work, as Respondent had her deposit for seven (7) months from February 23, 2023, through September 25, 2023.

Respondent did not appear through an authorized member, employee, or attorney, notwithstanding proper notice of the hearing. On September 18, 2023, the Registrar issued the Notice of Hearing advising the parties that the hearing would convene on November 3, 2023, at 1:00 p.m. and that a Google Meet link for participation in the hearing would be provided by the Office of Administrative Hearings. The Notice of Hearing was sent to Respondent’s mailing and email addresses of record with the Registrar. Also on September 18, 2023, the Office of Administrative Hearings issued to the parties an Order Setting Hearing Via Google Meet which was sent to Respondent’s email address of record with the Registrar. That Order contained a Google Meet link to join the hearing by video or by telephone.

Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on November 20, 2023. Such prior License record reflects that Respondent’s License Number 323062 was first issued on December 26, 2018, and is active. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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 possessed $5,500.00 of Complainant’s money and would not return that money, coercing Complainant to allow Respondent to perform work, seven (7) months later, at additional expense to Complainant. Therefore, the credible evidence of record established that Respondent committed a fraudulent act resulting in substantial injury to Complainant. Consequently, Complainant established that Respondent violated A.R.S. § 32-1154(A)(6).

The evidence established that Respondent did not provide a written contract for the project to Complainant. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Number 323062 for a period of five (5) days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 21, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

David Fagerburg

[email redacted]

Splinters Hardwood Flooring and Supply

[email redacted]

Christine Barrett

[email redacted]

By: OAH Staff