ALJDEC - Licensing
2024A-01555-CHC-ROC · Registrar of Contractors · 2024-09-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Andrea Rebecca Miller-Pewsey FDM
Construction LLC,
COMPLAINANT,
v.
CHARLIE & HIS BOYS LLC
License No. ROC 338374,
RESPONDENT.
No. 2024A-01555-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 28, 2024
APPEARANCES: Andrea Rebecca Miller-Pewsey represented FDM Construction LLC (Complainant). Torres represented CHARLIE & HIS BOYS LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDING OF FACTS
1. On or about September 10. 2023, Respondent agreed to repair a floor with epoxy for Willow Valley Club Association (Association). The amount due under the contract was $9,325.00.
2. The Association paid Respondent in full pursuant to the contract.
3. Respondent did not provide Complainant with a contract that included all of the elements required under included all of the elements listed in Arizona Revised Statutes (A.R.S.) § 32-1158.02.
3. On or about September 10, 2023, Respondent started work.
4. On or about September 14, 2023, Respondent completed work.
5. On or about February 7, 2024, the Arizona Registrar of Contractors (Registrar) received a complaint alleging that Respondent performed poor work in connection with a construction contract.
6. The Registrar assigned the complaint to one of its investigators, Cliff Corlett (Investigator Corlett).
7. On March 21, 2024, Investigator Corlett conducted an initial job-site inspection. 8. On April 18, 2024, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:
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You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Concrete repairs charged to fix prior to epoxy going down not fixed.
Investigator’s Observation: Epoxy floor covering blistering in numerous places throughout project. Floor cracking is telegraphing through the floor coating. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
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: 2 - Cracks are back in the same exact spot. Wasn't done correctly now blaming moisture
Investigator’s Observation: If a contractor fails to perform any moisture testing prior to installing any type of flooring or floor covering, they are accepting the existing floor surface as acceptable to install their product. If moisture causes the flooring or floor covering failure, the installing contractor is responsible to correct. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
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.
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9. The deadline for compliance under the Directive was May 10, 2024.
10. On May 28, 2024, Investigator Corlett conducted a compliance inspection. Investigator Corlett concluded that Respondent failed to correct the items in the Directive. Investigator Corlett’s job-site compliance notes provided, in relevant part, as follows:
On May 28, 2024 a Compliance Inspection was conducted and the findings were: The Respondent had returned to make repairs. The Respondent had ground out numerous areas and refinished those areas. The Complainant had improperly applied red spray paint to all the areas where they felt the epoxy had failed. The Respondent was not responsible to remove the red paint. The Complainant did considerable removal of the paint however there is some light red discoloration in numerous repaired areas. Respondent states that Complainants paint removal also caused a removal of the epoxy floor flaking causing a visible ring around the repairs. As to the actual repairs there appears to be a depression at the repaired areas that cause them to be highly unsightly and unacceptable.
11. On June 20, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated A.R.S. § 32-1154(A)(3) - R4-9-108(a), A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.02, and A.R.S. § 32-1154(A)(22).
12. Respondent filed a timely answer to the Citation.
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. At hearing, Andrea Rebecca Miller-Pewsey testified on behalf of Complainant. Respondent presented the testimony of its qualifying party, Jonathan Torres. Investigator Corlett testified consistently with his job-site inspection notes.
15. Ms. Miller-Pewsey explained that Respondent performed poor work during the floor repair project.
16. Mr. Torres explained that before Respondent made repairs under the Directive, the Association placed red spray paint marks on certain areas on the floor that the Association believed needed to be repaired. Respondent grinded the areas that contained the red spray paint. Ms. Miller-Pewsey asked if she could come and clean the red spray paint and Mr. Torres told her that she would have to wait until two days after the floor was dry. Unbeknownst to Respondent, the Association came and cleaned the area within two days after Respondent performed patch work and smeared paint over the patched areas that Respondent had already grinded. Therefore Respondent was required to perform a second grind that caused the depressions. When Respondent was preparing to seal the floor was going to seal and feather out the base coat and down edges of existing epoxy so that they could bond, the Association send over a board member with acetone. Mt. Torres instructed the Board member to wipe away from their patches, however, the Board smeared acetone on his patches and it wiped away the flakes placed by Respondent.
17. I find Mr. Torres’s testimony to be credible.
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.
5. The preponderance of the evidence shows that Respondent did not provide the Association with a contract that included all of the elements listed in 32-1158.02, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.02.
6. Upon consideration of all the evidence, the Administrative Law Judge finds that the work performed by Respondent was modified by the Association before Respondent began repair work under the Directive. The preponderance of the evidence shows that after Respondent began its patchwork, an individual from the Association smeared paint over Respondent’s patches and on the edges of the patches that had already been grinded. Mr. Torres provided credible testimony that after the Association smeared paint over its patch work and grinds, Respondent was required to grind the area a second time which caused depressions. The Administrative Law Judge concludes that Respondent is not responsible by the actions and modifications made by the Association. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is ordered that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with all of the requirements of A.R.S. § 32-1158.02.
If Respondent fails to provide proof that it has so revised its form contracts, it is ordered that Respondent’s license be suspended for three days.
In all other respects, the complaint is dismissed.
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, September 17, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
CHARLIE & HIS BOYS LLC
[email redacted]
Andrea Rebecca Miller-Pewsey
FDM Construction
LLC
[email redacted]
Cliff Corlett
Registrar of Contractors
[email redacted]
By: OAH Staff