ALJDEC - Licensing

2024A-11513-CHC-ROC · Registrar of Contractors · 2025-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pam Marie Caviness,

COMPLAINANT

v.

Daniel Cerniglia

License No. ROC 341571,

RESPONDENT

No. 2024A-11513-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2025

APPEARANCES: Complainant Pam Marie Caviness appeared via Google Meet. Registrar of Contractors Investigator Mike Wiskow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Daniel Cerniglia (Respondent) is the holder of License No. 341571 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 22, 2024, Complainant hired Respondent to perform work at her home in Scottsdale, Arizona.

On or about October 12, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. The jobsite inspection was performed on November 26, 2024.

Investigator Wiskow then issued a Written Directive on or about November 26, 2024, which provided in pertinent part as follows:

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 Thursday, December 12, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1 - Spare bath improperly grouted, pinholes thru out.

Investigator’s Observation: Confirmed. There are pin holes in the grout in the guest bath. There should not be pinholes in the grout.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 2 - Master shower not draining, sloped wrong Schluter edges not flush or even

Investigator’s Observation: Confirmed. The shower is incomplete and does not slope properly. The water should slope to the drain. The shower should be completed.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 3 - Red guard not used on any of the walls in master shower Floor in master bath has pinholes throughout

Investigator’s Observation: Confirmed. Wet areas in a room should be waterproofed. Waterproofing is required above the shower head.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 4 - Glue from his finger prints throughout the entire 2400 sq ft of new wood floors

Investigator’s Observation: Confirmed. There are glue fingerprints on the floor.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 5 - Several spots in the floors where they aren’t glued down properly, hollow sound and raised.

Investigator’s Observation: Confirmed. The flooring is hollow in some spots. The glued down floor should not be pulling up.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 6 - Schluter edge in shampoo niche not lined up flush in spare bath

Investigator’s Observation: Confirmed. The metal edge corners in the guest bath are unsightly and the tile cuts are chipped at the cut out.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 7 - Pinholes throughout grout in master bath walls

Investigator’s Observation: Confirmed. There are pin holes in the grout in the Master bath walls. There should not be pinholes in the grout.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 8 - Schluter edges not flush or even in master bath

Investigator’s Observation: Confirmed. The metal edge corners in the Master bath are unsightly and the tile cuts are chipped at the cut out.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 9 - Floor in master bath has pinholes throughout the floor

Investigator’s Observation: Confirmed. There are pin holes in the grout in the Master bath floor. There should not be pinholes in the grout.

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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 10 - Gaps in floors at all doors.

Investigator’s Observation: Confirmed. The doorways were not undercut.

Contractor should confirm any gaps in the floor installation and 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship...

(All errors contained in the original).

While no Compliance Jobsite Inspection was completed, Investigator Wiskow noted the following:

Compliance Jobsite General Notes: No CJSI performed. Verified with complainant that no work has been started on the directive. Also verified a text from the respondent to the complainant saying he would not return to the property to complete any work and that she should find someone else...

On December 19, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about January 2, 2025, Respondent submitted an Answer to the Registrar.

On or about January 28, 2025, a Notice of Hearing was issued setting a hearing on February 27, 2025, at the Office of Administrative Hearings, an independent state agency. A copy of the Notice of Hearing was mailed and e-mailed to Respondent’s addresses of record.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Investigator Wiskow testified as to the Registrar’s involvement and the above timeline, notes, and findings.

Investigator Wiskow testified that Respondent failed to appear and the jobsite investigation and did not contact him at any time during this matter.

As to the contract issues, Investigator Wiskow testified that elements 1, 3, 4 and 9 were a sent from Respondent’s contract with Complainant.

Complainant testimony echoed Investigator Wiskow as to the status of the project.

Administrative notice was taken of Respondent’s prior License record on March 14, 2025. Such prior License record reflected that Respondent’s License No. 341571 was first issued on November 4, 2022, and reflected that there was one open case, namely the present case. The License record also reflected that Respondent’s license was currently suspended as of November 27, 2024, due to non-renewal.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 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).

The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as the work performed was not completed in a workmanlike manner.

The preponderance of the evidence established that the contract was in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, as it did not contain the name of the contract, his address and license number, did not contain the date of the contract nor the estimated date of completion, and did not contain “right to file language”.

Finally, the preponderance of the evidence established Respondent failed to complete the corrective work following the Directive being issued. Therefore, Complainant 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 341571 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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.

It is further recommended that Respondent be ordered to provide the Registrar with a sample contract which complies with A.R.S. § 32-1158. It is recommended that Respondent’s license remain suspended until he complies with the same.

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, March 14, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Daniel Cerniglia

[email redacted]

Pam Marie Caviness

[email redacted]

By: OAH Staff