ALJDEC - Licensing
2024A-03285-CHC-ROC · Registrar of Contractors · 2024-08-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Deborah Laver
COMPLAINANT,
v.
JDM Counter Tops, Inc.
License No. ROC 260972,
RESPONDENT.
No. 2024A-03285-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 5, 2024
APPEARANCES: Deborah Laver (Complainant) represented herself. Carmelo Solis represented JDM Counter Tops, Inc. (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 5.
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FINDINGS OF FACT
1. On September 25, 2023, Respondent agreed to remodel Complainant’s residence for the amount of $13,856.17. Complainant paid Respondent the full contract price.
2. On or about March 21, 2024, the Arizona Registrar of Contractors (Registrar) received a Complaint from Complainant alleging poor workmanship on the part of Respondent.
3. The Registrar assigned the Complaint to one of its investigators, Joey Chester (Investigator Chester.)
4. On or about April 18, 2024, Investigator Chester conducted a job-site inspection. At the job-site inspection, Investigator Chester substantiated three items from the Complaint. Investigator Chester discovered inconsistencies in the color of the blacksplash and multiple cracks throughout kitchen and bathroom of caulking. Investigator Chester also observed the cabinet installation to be incomplete and that Respondent did not complete work on the backsplash.
5. On April 17, 2024, Investigator Chester issued a Directive to Respondent. The Directive provided, in relevant part, as follows:
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After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Friday May 10th 2024.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Kitchen quartz backsplash was cut into 2 pieces unlike the other 2 areas in kitchen. Color does not match.
Investigator’s Observation: At the time of inspection the color of the backsplash is not the same color backsplash as the rest of the installed backsplash, respondent will need to correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 2: Calking in kitchen and baths cracking and peeling.
Investigator’s Observation: Verified multiple cracks throughout kitchen and bathroom of caulking, respondent will need to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 3: Casita bath cabinet was replaced by Carmello due 2 water leak. Cabinet install is not complete. Backsplash not complete.
Investigator’s Observation: At the time of inspection the trim has not been installed on cabinet along with the backsplash underneath the outlet in the bathroom, respondent will need to correct by appropriate means. Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
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6. Respondent failed to correct the items listed in the Directive.
7. On May 29, 2024, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(C).
8. Respondent filed a timely answer to the Citation.
9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
10. At hearing, Complainant testified on behalf of herself and presented the testimony of her significant other, Douglas Coffman. Carmelo Solis, the owner of Respondent, testified on behalf of Respondent. Investigator Chester testified consistently with his job-site inspection notes.
11. Complainant agreed with the findings of Investigator Chester. Mr. Solis testified to the effect that he was not opposed to correcting the items in the Directive with the exception of Complaint Item 1. Mr. Solis stated that the color on the backsplash does not match because Complainant requested changes to the backsplash after the piece had been cut. Mr. Solis alleged that Complainant agreed that Respondent could install the backsplash in a manner that might result in discoloration. However, Complainant disputed such an agreement. Moreover, Respondent did not obtain a written waiver from Complainant.
12. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website. According to the information available on the website on August 26, 2024, Respondent’s license record was first issued on January 16, 2010, and is active. Respondent’s license has not been subjected to discipline by the Registrar. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of a civil penalty and discipline.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1154(A).
2. 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. See A.A.C. R2-19-119.
3. 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).
4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform
the work in accordance with professional workmanship standards, which is a violation of A.A.C. R4-9-108(C), and thereby of A.R.S. § 32-1154(A)(3). If Respondent could not install the backsplash without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by Complainant. Respondent did not obtain such a warranty disclaimer in this case.
6. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of A.R.S. § 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 License No. 260972 issued to JDM Counter Tops, Inc., for two days.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 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, August 26, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
JDM Counter Tops, Inc.
[email redacted]
Deborah Laver
[email redacted]
By: OAH Staff