ALJDEC - Licensing
2023A-10334-CHC-ROC · Registrar of Contractors · 2024-02-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Emmanuel Ramirez
COMPLAINANT,
v.
Surface Protective Coatings LLC
DBA: Epoxy Floor King
License No. ROC 326179,
RESPONDENT.
No. 2023A-10334-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 16, 2023
APPEARANCES: Complainant Emmanuel Ramirez (Complainant) represented himself. Eric Nunez represented Respondent Surface Protective Coatings LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit A
_____________________________________________________________________
FINDINGS OF FACT
1. On or about July 5, 2023, Complainant and Respondent entered into a
residential remodeling contract wherein Respondent would remodel Complainant’s home for $6,080.00. Complainant paid Respondent $3,120.61 for the work.
2. Respondent did not provide Complainant with a written contract that advised Complainant of her right to file a complaint with the Arizona Registrar of Contractors (Registrar or ROC) against Respondent for an alleged violation of Ariz. Rev. Stat. section 32-1154(A), within the time allowed by Ariz. Rev. Stat. section 32-1155(B).
3. On or about August 23, 2023, Respondent stopped work.
4. On or about September 5, 2023, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.
5. On September 22, 2023, ROC Investigator Ruben Perez, Sr. conducted a job-site inspection.
6. On September 28, 2023, the ROC issued a Directive to Respondent directing Respondent to correct the following items by appropriate means, no later than October 16, 2023:
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Complaint Item 1: POOR FINISHED WORK IN THE EPOXY FLOOR BUBBLES, SCRATCHES, HAIRS, ALCOHOL STAINS, AND PIECES OF WOOD, SHEETROCK AS WELL OF ORANGE TAPE BETWEEN THE EPOXY COAT AND CLEAR COAT)
Investigator’s Observation: Floor was observed with 2 imperfections in living room (2 small 1⁄2” circles), 1 imperfection in family room and 2 areas in dining room with dark stains on floor. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108 POOR FINISH
Complaint Item 3: KITCHEN FURNITURE DAMAGE WITH EPHOXY AND CHEMICALS
Investigator’s Observation: Bottom of lower kitchen cabinets were observed with light colored stains. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Complaint Item 4: INTERIOR WALLS DAMAGE
Investigator’s Observation: Front window sill was observed with 2 spots with excess floor material. Living room walls were observed with 2 scratches approximately 3’ from floor. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Complaint Item 5: CARPET ROOM DAMAGE (EPOXY ON IT)
Investigator’s Observation: West bedroom carpet edge was observed with excess floor material. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Complaint Item 6: DOOR FRAME PAINT DAMAGE
Investigator’s Observation: West bedroom door frame was observed with paint peeling. Complainant reported this was caused by dust containment material used in floor application process. Respondent to correct by appropriate means. Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Complaint Item 7: EXTERIOR STUCCO WALL DAMAGE (EPHOXY STAIN)
Investigator’s Observation: Stucco near front door was observed stained (bottom). Respondent to correct by appropriate means.
Governing Rule:
Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Complaint Item 8: MAIN ENTRANCE CEMENT DAMAGE (EPHOXY AND CHEMICALS STAIN)
Investigator’s Observation: Concrete pad near front door was observed with excess liquid material on it. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
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7. On October 27, 2023, Investigator Perez Sr. conducted a compliance job-site inspection. Investigator Perez Sr. found that Respondent had failed to correct the items listed in the Directive.
8. On November 2, 2023, the ROC issued a Citation against Respondent’s license alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(A)); Ariz. Rev. Stat. sections 32- 1154(A)(12) and (22); Ariz. Rev. Stat. section 32-1158.
9. Respondent filed a timely answer to the Citation.
10 . The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on January 16, 2024.
12. At hearing, Complainant testified on behalf of himself. Respondent’s owner, Eric Nunez, testified on behalf of Respondent. Investigator Perez Sr. testified regarding his investigation of the complaint. Investigator Perez Sr. testified consistently with his job-site inspection notes and the Directive.
13. Complainant explained that Respondent tried to repair the floor three times but was unsuccessful. Complainant asserted that the project should have lasted seven days.
14. Mr. Nunez stated that Complainant did not like the first epoxy coat.
Mr. Nunez typically performs does industrial coating systems for the government. Mr. Nunez asserted that her performed work within the guidelines. Mr. Nunez also stated that his equipment was stolen from the property which caused a financial strain.
15. Pursuant to A.A.C. R9-4-117, administrative notice is taken of Respondent’s
license history on the Registrar’s public website on this date. Respondent’s License No. ROC 326179 is active and in good standing. Respondent’s license has never been disciplined.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 369, 372, 249 P.2d 837 (1952). “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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. The undisputed evidence established that Respondent did not provide Complainant with a contract that advised Complainant of his right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.
5. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that Respondent failed to correct the Directive items 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 Surface Protective Coatings LLC’s License No. ROC for three 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. 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, February 5, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Surface Protective Coatings LLC
[email redacted]
Emmanuel Ramirez
[email redacted]
By: OAH Staff