ALJDEC - Licensing
2024A-03337-CHC-ROC · Registrar of Contractors · 2024-11-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Randa Fleifel and Lara Mdanat,
COMPLAINANT,
v.
Building Tech Construction and Remodeling LLC,
License No. ROC 329028,
RESPONDENT.
No. 2024A-03337-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 15, 2024.
APPEARANCES:
For Complainant: Randa Fleifel and Lara Mdanat.
For Respondent: George Hanna and Attorney Mark Saric.
For the Registrar of Contractors: Steven Avila.
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 and Videos. Respondent’s Exhibits 1 through 7.
_____________________________________________________________________
FINDINGS OF FACT
Building Tech Construction and Remodeling LLC (Respondent) was the holder of License No. 329028 issued by the Arizona Registrar of Contractors (Registrar) on May 26, 2020.
On or about July 15, 2023, Randa Fleifel (Complainant) entered into a contract with Respondent for, among other things, flooring and painting.
On or about March 26, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.
The Registrar assigned the complaint to Investigator Steven Avila, who issued a Jobsite Inspection Notice on March 28, 2024, scheduling the inspection for April 18, 2024. On April 22, 2024, Investigator Avila issued a Jobsite Inspection Reschedule notice, scheduling the inspection for April 29, 2024.
Investigator Avila conducted the jobsite inspection on April 29, 2024, and Respondent was present. Following the inspection, Investigator Avila issued a Written Directive From the Registrar to Respondent on May 14, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - uneven tile work , missing grout and broken tiles he declined to close open gabs in the wall
Investigator’s Observation: At the time of the inspection there were locations throughout the tile installation in which the tile have cracked at the intersections of four tiles. These locations are in line with cracking that occurs with the presence of hollow tile. There were also other locations in which chips along grout lines show indications of caving inward towards the concrete slab which would indicate hollow voids in the tile installation. There was also a location near the front entrance in which a large gap remained between the tile edge and front entrance. Lippage in excess of 1/32 of an inch was also found in multiple locations. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: . . . A.A.C. R4-9-108(a). . . .
Compliance Item: 3 - unprofessional paint job overspray pain on tiles and walls.
Investigator’s Observation: At the time of the inspection there were multiple locations in which there was paint overspray on the tile surface. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: . . . A.A.C. R4-9-108(a). . . .
Compliance Item: 4 - did not follow plans on the permit which mad us fail health inspection and then decline to complete the job
Investigator’s Observation: At the time of the inspection the respondent had passed all inspections pertaining to the building permit and the business had received their certificate of occupancy. There does not appear to be anything in the scope of work pertaining to meeting the requirements of the local health department and health inspections fall outside the jurisdiction of the registrar. One restroom did not have a GFCI outlet per the plans. No signed change order pertaining to the elimination of the outlet has been provided by the respondent. Allegation for missing outlet in the restroom is verified. Respondent shall correct by the appropriate means.
Governing Rule: . . . A.A.C. R4-9-108(a). . . .
The Written Directive required Respondent to notify Investigator Avila of Respondent’s compliance with the directive prior to 5:00 p.m. on May 31, 2024.
On June 7, 2024, Investigator Avila issued a Compliance Inspection Notice, setting the inspection for June 14, 2024. Following the inspection, Compliance Items 2 and 3 were deemed incomplete; Investigator Avila commented that corrections were attempted on both the tile and paint issues.
On July 2, 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 July 14, 2024. Respondent’s Answer stated it denied any charges.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On July 23, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for August 28, 2024, at 1:00 PM.
On or about August 15, 2024, Respondent requested that the hearing be continued due to a scheduling conflict.
On or about August 27, 2024, the parties were notified the hearing was continued to October 15, 2024. The order granting the continuance from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.
The hearing was held via Google Meet on October 15, 2024.
Investigator Avila testified in support of his investigation and documents. He testified that there were “hollow tiles” throughout the project. Investigator Avila consulted with tiling experts at the Registrar and researched the issue to reach that conclusion. Investigator Avila also testified that he did not identify every instance of lippage at the jobsite.
Complainant’s witnesses testified in support of Investigator Avilla’s findings that the work was not completed appropriately.
Respondent testified and entered evidence demonstrating that Respondent did a significant amount of work in response to the Directive. Respondent testified that some tiles appeared to have been broken by a hammer; Respondent implied that Complainant sabotaged some of the tiles. Respondent testified that Complainant was using a heavy fridge on the tiles, which may have caused the tiles to break, and that Complainant should have used different tiles.
Administrative notice was taken of Respondent’s prior License record on October 29, 2024. According to that record, Respondent’s License No. 329028 only had one open case.
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.”
Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or materially impact the work or cost required to correct the deficiency. Subsequent work that has a de minimis impact on the issues alleged is not sufficient to establish the affirmative defense.
Sabotage is a form of modification.
The preponderance of the evidence failed to establish that Complainant modified the tiles by sabotage.
The preponderance of the evidence failed to establish that Complainant abnormally used the tile by having a heavy refrigerator.
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 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 1 day Respondent’s License No. 329028.
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, November 4, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Mark G. Saric, Esq.
Resolvere Law PLLC
[email redacted]
Randa Fleifel
[email redacted]
Steven Avila
[email redacted]
By: OAH Staff