ALJDEC - Licensing

2023A-09182-CHC-ROC · Registrar of Contractors · 2025-01-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nichole Lundberg

COMPLAINANT,

TLC Contractors LLC

License No. ROC 326693

RESPONDENT.

No. 2023A-09182-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 2, 2025

APPEARANCES: Nichole Lundberg appeared on behalf of herself. Mark Hittner appeared on behalf of TLC Contractors, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

TLC Contractors LLC (Respondent) holds General Residential B General

Residential Contractor License No. 326693 issued by the Arizona Registrar of Contractors (Registrar or ROC).

Mark Hittner (Mr. Hittner) is Respondent’s qualifying party.

On November 1, 2024, the Registrar issued a Notice of Hearing setting

the above-captioned matter for hearing on December 10, 2024, by the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Respondent may have

violated Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. section 32-1154(A)(22).

On or about December 22, 2022, Respondent agreed to remodel

Complainant’s home for the amount of $18,452.00. Complainant paid Respondent $23,000.00 under the contract.

On or about June 7, 2023, Respondent started work.

On or about September 21, 2023, Respondent stopped work.

In October of 2023, Complainant filed a Complaint with the Registrar

alleging abandonment and poor work on the part of Respondent.

The Registrar assigned the complaint one of its investigators, Steven Avila

(hereinafter “Investigator Avila”). On March 29, 2024, Investigator Avila conducted an initial job-site inspection. At the inspection, Investigator Avila substantiated Complainant’s allegation of poor work regarding complaint items 4, 7, 16, 20, 29, and 30.

On April 25, 2024, the Registrar issued a Directive to Respondent

directing Respondent to correct the following items, by appropriate means, no later than May 13, 2024:

Compliance Item: 4 - Wall behind guest bathroom toilet was not painted

and possibly not textured. Doesn't match the other walls of the room.

Investigator’s Observation: Wall behind this toile was missing paint

coverage. Allegation is verified. Respondent shall correct by the appropriate

means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(c): All work performed by a contractor in a

county, city, or town that has not adopted building codes or where

any adopted building codes do not contain specific provisions

applicable to that aspect of construction work shall be performed in

accordance with professional industry standards.

Compliance Item: 7 - Kitchen track lighting patches on ceiling are visible.

Investigator’s Observation: Repairs made during the replacement of

the kitchen lighting are visible and the textures do not match surrounding

areas. Allegation is verified. Respondent shall correct by the appropriate

means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(c): All work performed by a contractor in a

county, city, or town that has not adopted building codes or where

any adopted building codes do not contain specific provisions

applicable to that aspect of construction work shall be performed in

accordance with professional industry standards.

Compliance Item: 16 - Guest bathroom shower tile is uneven and jagged.

Residue was left on the tile that we are unable to get off.

Investigator’s Observation: At the time of the inspection there guest

bathroom wall tile had multiple locations in which the lippage between

adjacent tiles exceeded 1/32 of an inch. Workmanship standards state -

Lippage of all manufactured Natural Stone Tiles are to be no greater than 1/32"

between individual tiles. Allegation is verified. Respondent shall correct by the

appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a

professional and workmanlike manner.

Compliance Item: 20 - Master bathroom requires new paint as the grout as

continued work in the bathroom was done after the full house was painted.

Investigator’s Observation: At the time of the inspection there were a

couple locations in the master restroom in which there was inadequate paint

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a

professional and workmanlike manner.

Compliance Item: 29 - Kitchen backsplash/tile is uneven throughout. Grout

and layout in multiple areas are not aligned to the boarders, countertops,

cupboards, and walls.

Investigator’s Observation: The kitchen tile work contained irregular

grout lines, unevenness and lippage in multiple locations. Workmanship

standards state -Tile surface should be straight and reasonably flat, allowing for

individual characteristics of the tile. Nominal centerline of all joints should be straight and even width, with due allowances for hand-molded or rustic tiles.

Allegation is verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a

professional and workmanlike manner.

Compliance Item: 30 - Boarder tiles show they were not finished or painted

in guest bathroom and some areas of the kitchen.

Investigator’s Observation: Border tile in bathroom was left without a

bull nose edging. The trim pieces were used on the top edge of the backsplash

but not visible side edges. These side edges appear unfinished and bare.

Allegation is verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a

professional and workmanlike manner.

In July of 2024, Complainant filed an addendum to the Complaint.

Complainant submitted a Hard Surface Inspection Report completed by White Rhino Solutions showing that the warped flooring was the result of a poor installation.

The report also showed that the baseboards were installed in direct contact with the flooring planks compressing the perimeter of the installation.

On August 6, 2024, Investigator Avila conducted a second job-site

inspection regarding the items in the Addendum. Investigator Avila substantiated the additional complaint items.

On August 30, 2024, Investigator Avila issued an Amended Directive

directing respondent to correct the following items no later than September 20, 2024:

You are directed to remedy the following violations by the appropriate means:

Complaint Item: 1 - All 3 rooms with new floors are warped, dislodged, and creak.

Investigator’s Observation: At the time of the inspection there was peaking and cupping in multiple locations of the LVP flooring. The materials per the agreement between the two parties was purchase by the homeowner. Although peaking and cupping is present there was no evidence brought forth to substantiate that the issues are due to the installation workmanship of the respondent. Given the new evidence gathered on 8/6/2024 and address in line item 32 the allegation of warped flooring due to improper installation has been verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner. A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 4 - Wall behind guest bathroom toilet was not painted and possibly not textured. Doesn't match the other walls of the room.

Investigator’s Observation: Wall behind this toile was missing paint coverage. Allegation is verified. Respondent shall correct by the appropriate means.

Complaint Item: 7 - Kitchen track lighting patches on ceiling are visible.

Investigator’s Observation: Repairs made during the replacement of the kitchen lighting are visible and the textures do not match surrounding areas. Allegation is verified. Respondent shall correct by the appropriate means.

Complaint Item: 16 - Guest bathroom shower tile is uneven and jagged. Residue was left on the tile that we are unable to get off.

Investigator’s Observation: At the time of the inspection there guest bathroom wall tile had multiple locations in which the lippage between adjacent tile exceeded 1/32 of an inch. Workmanship standards state - Lippage of all manufactured Natural Stone Tiles are to be no greater than 1/32" between individual tiles. Allegation is verified. Respondent shall correct by the appropriate means.

Complaint Item: 20 - Master bathroom requires new paint as the grout as continued work in the bathroom was done after the full house was painted.

Investigator’s Observation: At the time of the inspection there were a couple locations in the master restroom in which there was inadequate paint coverage/finish. Allegation is verified.

Complaint Item: 29 - Kitchen backsplash/tile is uneven throughout. Grout and layout in multiple areas are not aligned to the boarders, countertops, cupboards, and walls.

Investigator’s Observation: The kitchen tile work contained irregular grout lines, unevenness and lippage in multiple locations. Workmanship standards state -Tile surface should be straight and reasonably flat, allowing for individual characteristics of the tile. Nominal centerline of all joints should be straight and even width, with due allowances for hand-molded or rustic tiles. Allegation is verified. Respondent shall correct by the appropriate means.

Complaint Item: 30 - Boarder tiles show they were not finished or painted in guest bathroom and some areas of the kitchen.

Investigator’s Observation: Border tile in bathroom was left without a bull nose edging. The trim pieces were used on the top edge of the backsplash but not visible side edges. These side edges appear unfinished and bare. Allegation is verified. Respondent shall correct by the appropriate means.

Complaint Item: 32 - All rooms baseboards installed in direct contact with the flooring planks compressing the perimeter of the installation.

Investigator’s Observation: At the time of the inspection. Brian Coon, the flooring inspector was able to confirm the allegation that the baseboards installed above the laminate flooring have direct contact with the flooring, creating pinch points. Page 4 Section 11b of the installation instructions for the flooring states - When installing moldings, leave slight clearance between the molding and the planks. Nail the molding to the wall surface, not through the flooring. This installation item was not followed by the baseboard installation throughout the flooring installation. Allegation is verified.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Respondent failed to correct all items listed in the Directives by the

due dates.

A hearing was held on January 2, 2025.

At hearing, Investigator Avila testified regarding his investigation of the

complaint. Complainant agreed with the findings of Investigator Avila. Mr. Hittner and Mary Bannon, Respondent’s project manager at the time of construction, testified on behalf of Respondent.

Testimony of Mark Hittner

19. Mr. Hitter’s daughter managed Complainant’s project. Mr. Hitter was not

present for the majority of the work. Mr. Hitter contended that the tile in the guest bathroom did not exceed 1/32 of an inch. Mr. Hitter agreed that the texture was not perfect. Mr. Hitter agreed with some of Investigator Avila’s findings regarding the paint.

Testimony of Mary Bannon

22. Mary Bannon managed Complainant’s project at the beginning of

construction. Because Ms. Bannon’s mother became ill, Ms. Bannon stopped working as the manager and another employee filled the position.

23. Ms. Bannon testified at hearing that Complainant told Respondent that its

workers could not return to her property. However, Ms. Bannon did not testify regarding the date that Complainant made the alleged statement.

24. Ms. Bannon alleged that she sent an e-mail to Investigator Avila and

Complainant to try and make repairs. Ms. Bannon alleged that after Respondent stopped work, Complainant allowed other contractors to perform work. Ms. Bannon also alleged that modifications were made to Respondent’s work. However, there was no direct testimony the contractors or written evidence to corroborate Ms. Bannon’s claims.

25. Administrative notice is taken of the Registrar’s public website. According to

the information available on the website on January 14, 2025, Respondent’s license was first issued on October 30, 2019, and is suspended for lack of bond. Such prior License record also shows that there is one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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.

3. The Administrative Law Judge may consider ROC’s administrative record.

4. 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 section 5 (1960).

5. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely Ariz. Admin. Code section R4-9-108(A).

6. The preponderance of the evidence shows that Respondent failed to

correct the items listed in 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 ROC License: No. 326693 held by TLC Contractors, LLC, for three days.

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 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, January 14, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

TLC Contractors LLC

[email redacted]

Nichole Lundberg

[email redacted]

By: OAH Staff