ALJDEC - Licensing
2024A-03002-CHC-ROC · Registrar of Contractors · 2024-10-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Christopher Day,
COMPLAINANT,
v.
Dolores Mary Beno,
DBA: Beno's Flooring Services
License No. ROC 331472,
RESPONDENT.
No. 2024A-03002-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on October 7, 2024.
APPEARANCES:
For Complainant: Christopher Day and Connie Day.
For Respondent: Nicholas Beno.
For the Registrar of Contractors: Investigator Clifford Corlett.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Photographs.
_____________________________________________________________________
FINDINGS OF FACT
Dolores Mary Beno, DBA Beno’s Flooring Services, (Respondent) was the holder of License No. 331472 issued by the Arizona Registrar of Contractors (Registrar) on November 24, 2020.
On or about July 11, 2023, Christopher Day (Complainant) entered into a contract with Respondent for, among other things, tiling a shower.
On or about March 12, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work. Prior to the complaint, the parties engaged in the Registrar’s Building Confidence Participants program, which did not resolve the issue.
The Registrar assigned the complaint to Investigator Corlett, who issued a Jobsite Inspection Notice on April 1, 2024, and Jobsite Inspection Reschedule Notice on April 2, 2024, scheduling the inspection for April 8, 2024.
Investigator Corlett conducted the jobsite inspection on April 8, 2024, and Respondent was present. Following the inspection, Investigator Corlett issued a Written Directive From the Registrar to Respondent on May 1, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Allegation: 1 - Grout in corners of the show is separating in multiple locations.
Investigator’s Observation: Grout cracks in corners were observed.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. . . .
Complaint Allegation: 2 - Tile in the shower niche is bowed.
Investigator’s Observation: Tile in shower niche has excessive lippage. Possible curved tile.
RESPONDENT SHOULD CORRECT LIPPAGE BY APPROPRIATE METHODS. . . .
Complaint Allegation: 3 - Floor tile in shower in installed upside down.
Investigator’s Observation: Tile is not installed upside down. Tile does have glue transfer on the surface from the factory. Respondent demonstrated this can be removed by cleaning.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. . . .
Complaint Allegation: 4 - Schluter Jolly not cut at proper angles so there are gaps at every corner.
Investigator’s Observation: Schluter Jolly joints cut inaccurately and the joints were colored with a black marker.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. . . .
The Written Directive required Respondent to notify Investigator Corlett of Respondent’s compliance with the directive prior to 5:00 p.m. on May 17, 2024.
On June 10, 2024, Investigator Corlett conducted a compliance inspection. During the inspection, Compliance Items 2 and 3 were deemed incomplete. For Compliance Item 2, the investigator observed that “black grout transfers color to wet cloth.” For Compliance Item 3, the investigator observed that the “floor still appeared to need more cleaning of transferred glue.”
On June 14, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on or about June 24, 2024. Respondent’s Answer stated that the work was done to workmanship standards and that the only remaining issues were cosmetic. Respondent also offered to complete the remaining two items and contended that Complainant did not pay Respondent the full amount owed. The Answer also requested dismissal of the citation and complaint.
On August 13, 2024, the Registrar denied the request to dismiss the citation and complaint.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On August 19, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for October 7, 2024, at 1:00 PM.
The hearing was held via Google Meet on October 7, 2024.
Investigator Corlett testified in support of his investigation. He stated that on May 20 and 21, 2024, he received communications from both Parties making allegations that the other party had cracked numerous tiles. Investigator Corlett was unable to determine the cause of the cracked tiles; accordingly, the cracks were not deemed to be an independent violation or a failure to comply with the Directive.
Complainant testified about his bad experience working with Respondent and his displeasure with how the project turned out. Complainant also testified that he believed Respondent cracked the tiles when doing its corrective work by using a hammer to remove nearby tile.
Mr. Beno testified that the tiles were not cracked when the corrective work was completed. He stated that he completed everything except for the two issues identified, which would be simple to fix.
Administrative notice was taken of Respondent’s prior License record on October 22, 2024. According to that record, Respondent’s License No. 331472 was active. The license only had one open complaint.
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. Respondent bears the burden of proof to establish an affirmative defense 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.”
For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. For compliance-specific items, only alleged violations identified by the investigator and deemed uncorrected are noticed in the Citation: as stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to attribute issues to Respondent and charge Respondent, charges were not incorporated into the Citation. The Registrar’s process provides the Respondent an opportunity to correct its deficient work by appropriate means; without that opportunity, the alleged deficiency is not ripe for hearing.
In correcting work pursuant to a Written Directive From the Registrar, a contractor cannot damage property or create additional workmanship issues. Any damage or new deficiencies in workmanship must be fixed before the directive period ends. A new complaint and Directive are not required to hold a respondent responsible for its workmanship deficiencies when attempting such repairs.
The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Compliance Items 2 and 3.
The preponderance of the evidence failed to establish that the cracked tiles were caused by Respondent. The Parties blamed each other, and Investigator Corlett was unable to determine the cause.
The preponderance of the evidence established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22), specifically regarding Compliance Items 2 and 3.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for one day Respondent’s License No. 331472.
It is further recommended that the Registrar require Respondent to pay the sum of $50.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), 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, October 28, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Christopher Day
[email redacted]
Dolores Mary Beno
DBA: Beno's Flooring Services
[email redacted]
Cliff Corlett
[email redacted]
By: OAH Staff