ALJDEC - Licensing

2023A-11471-CHC-ROC · Registrar of Contractors · 2024-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Frances Anne Bailey,

COMPLAINANT

v.

European Granite and Remodeling LLC

License No. ROC 300754,

RESPONDENT

No. 2023A-11471-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2024

APPEARANCES: Complainant Frances Anne Bailey (Complainant) represented herself. Marion Bujor represented Respondent European Granite and Remodeling LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A through F.

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FINDINGS OF FACT

On February 22, 2024, the Registrar of Contractors, (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing on March 22, 2024, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent holds license number 300754 issued by the Registrar.

Marion Bujor is Respondent’s qualifying party.

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 Arizona Administrative Code (A.A.C.) R4-9-108(A), and thereby Arizona Revised Statues (A.R.S.) §§ 32-1154(A)(3) and (22). The citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

On November 16, 2023, Investigator Wiskow conducted an initial job-site inspection. Investigator Wiskow found that Respondent failed to perform work in a professional and workmanlike manner regarding complaint items 3 through 9 of the Complaint. Investigator Wiskow also substantiated item 1 of the complaint and found that Respondent abandoned the job to install back splash in the laundry room.

7. On November 16, 2023, the Registrar issued a Directive to Respondent. Through the Directive, the Registrar directed Respondent to correct the following complaint items, by appropriate means, no later than December 1, 2023.

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

Compliance Item: 1 - Laundry Room Granite not finished Investigator’s Observation: Confirmed. The back splash is not installed in the laundry room. Contractor should finish laundry room by appropriate means.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 3 - Radius behind faucet is unacceptable Investigator’s Observation: Confirmed. The radius has a bump in it. The radius should be continuous and uniform. Contractor should repair by 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: 4 - There is glue showing

Investigator’s Observation: Confirmed. The glue/epoxy is showing at the seam in several areas of the countertop edge. The epoxy should not be showing. Contractor should repair by 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: 5 - Seam by the Coffee Pot

Investigator’s Observation: Confirmed. The seam by the coffee pot is acceptable except at the edge. The profiles do not match properly. Contractor should repair by 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: 6 - Chip by Toaster

Investigator’s Observation: Confirmed. There is a chip at the edge next to the wall by the toaster. Contractor should repair by 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: 7 - Gap at right finish of bar.

Investigator’s Observation: Confirmed. There is a gap to the right of the bar that exceeds 1/8th inch. Contractor should repair by 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: 8 - Chip by the Oven

Investigator’s Observation: Confirmed. Contractor should repair by 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: 9 - Chip at the right side of the sink. Investigator’s Observation: Confirmed.

Contractor should repair by 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: 10 – Various chips throughout the project. Investigator’s Observation: Confirmed. Contractor should verify and repair any unacceptable chips throughout the project by 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.

8. Respondent made repairs to some of the items listed in the Directive.

9. On December 22, 2023, Investigator Wiskow completed a compliance inspection. At the compliance inspection, Complainant notified Investigator Wiskow that Respondent completed complaint items 1, 3, 4, 5, 9, and 10. Investigator Wiskow found that Respondent’s repairs to complaint items 6, 7, and 8 did not meet minimum workmanship standards. Investigator Wiskow’s notes regarding his compliance job-site inspection provided, in relevant part, as follows:

Compliance Item: #6 Chip by Toaster

Investigator’s Observation: The chip by the toaster was repaired. However, there is now a gap in that area next to the wall that exceeds 1/8” and the caulk is unsightly.

Does Not Meet Minimum Workmanship Standards

Compliance Item: #7 Gap at right finish of bar.

Investigator’s Observation: This area had a piece installed. The resulting repair is unsightly and there is a buildup of caulk. Does Not Meet Minimum Workmanship Standards

Compliance Item: #8 Chip by the Oven Investigator’s Observation: The chip by the oven was repaired. However the repair is unsightly.

Does Not Meet Minimum Workmanship Standards

10. Respondent filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. A hearing was held on May 22, 2024. At hearing, Complainant testified on behalf of herself. Marian Bujor testified on behalf of Respondent. Investigator Wiskow testified consistently with his initial job site and compliance inspection notes. Complainant explained that Respondent performed poor work. Complainant asserted that Respondent’ work related to complaint items 5 and 7 did not meet minimum workmanship standards. Complainant also alleged that there are still chips throughout her house. Respondent did not dispute Investigator Wiskow’s findings at the compliance job-site inspection.

13. Administrative notice is taken of Respondent’s prior License record on June 11, 2024. Such prior License record reflects that Respondent’s license number 300754 was first issued on September 14, 2015, and is active. Such prior License record also reflects that there are two open complaints against Respondent’s license. Such prior License record also reflects that no complaints have resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

A.R.S. § 32-1154(A) provides:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. (Underscore added.)

A.A.C. R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The preponderance of the evidence shows that the work by Respondent

was not in compliance with the Registrar’s workmanship standards. Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).

11. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(22) by failing to comply with the directive regarding complaint items 6, 7, and 8.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 300754 of European Granite and Remodeling LLC shall be suspended for a period of three calendar days.

It is further recommended that the Registrar require European Granite and Remodeling LLC to pay the sum of $250.00 as a civil penalty.

It is further recommended that if European Granite and Remodeling LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar European Granite and Remodeling LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with European Granite and Remodeling LLC, as defined in A.R.S. § 32-1101(A)(7), unless European Granite and Remodeling LLC 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, June 11, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Frances Anne Bailey

[email redacted]

European Granite and Remodeling LLC

[email redacted]

By: OAH Staff