ALJDEC

98F-A0208-ROC · Registrar of Contractors · 1998-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On June 1, 1998, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Ray Smith appeared on behalf of the Complainants. James Quittschreiber appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Ray and Kelly Smith (the “Complainants”) are the owners of property located at 8221 E. Spouse, Prescott Valley, Arizona (the “Property”).

2. James C. Quittschreiber (the “Respondent”) is the owner and qualifying party for J and S Flooring. In June of 1997, the Respondent failed to properly renew his Class C-08 License Number 108151. This license is now suspended for lack of a surety bond.

3. On or about November of 1996, the Complainants entered into a contract with Prescott Floor Covering to provide the materials for flooring at the Property. Prescott Floor Covering is owned and operated by Art and Peggy Roper. Prescott Floor Covering did not have a license to install the flooring at the Property.

4. Mr. Roper testified that Prescott Floor Covering hired the Respondent to install the flooring at the Property. On or about November 1996, the Respondent installed vinyl and Nafco plank flooring and carpeting at the Property.

5. Mr. Smith testified that the vinyl flooring did not properly adhere to the floor of the Property. On or about January of 1997, the Respondent returned to the Property and attempted to repair the flooring problems.

6. Mr. Smith testified that the repaired flooring was not satisfactorily completed. On or about November 25, 1997, the Complainants filed a Complaint with the Registrar of Contractors (the “ROC”). ROC Inspector Charles A. Thomas scheduled a jobsite inspection of the Property for December 18, 1997. The Respondent failed to appear for the jobsite inspection.

7. On or about December 19, 1997, the ROC issued a Corrective Work Order (the “CWO”) to the Respondent requiring the following corrective work: A. Remove the Nafco plank in all areas where the Nafco planking has been installed and replace in a workmanlike manner with new flooring material. B. Replace the vinyl in the south bath. C. Repair or readhere the vinyl in the master bath. D. Repair the void between the vinyl and the vanity in the hall bath. E. Restretch the carpet throughout to achieve a properly installed carpet.

8. On or about January 9, 1998, Mr. Smith sent a letter to the ROC stating that the Respondent had taken no corrective action at the Property. See Complainant’s Exhibit 6. On or about June 1, 1998, Inspector Thomas visited the Property. Inspector Thomas testified that the Respondent has taken no corrective action at the Property.

9. Mr. Quittschreiber testified that he was hired as an employee by Christy Floors to install the flooring at the Property. Mr. Quittschreiber testified that he was not hired as a subcontractor. Accordingly, Mr. Quittschreiber argued that his license should not be at issue.

10. Mr. Roper testified that he hired the Respondent as a contractor for the project at the Property.

11. On or about January 22, 1998, the ROC issued a Citation and Complaint against the Respondent alleging violations of A.R.S. §32-1154(A).

12. The undersigned Administrative Law Judge finds that the Respondent failed to perform the work at the Property in a workmanlike manner.

13. The undersigned Administrative Law Judge finds that the Respondent wrongfully installed the flooring and carpeting at the Property which has caused substantial injury to the Complainants.

14. The undersigned Administrative Law Judge finds that the Respondent has failed to take the appropriate corrective action within a reasonable time period after receiving the CWO. In fact, the Respondent has not corrected any of the items listed in the CWO.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(3) and R4-9-108 as set forth in Findings of Fact #12.

3. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(7) as set forth in Findings of Fact #13.

4. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(23) as set forth in Findings of Fact #14.

5. The undersigned Administrative Law Judge finds that grounds exist to revoke the Respondent’s Class C-34 license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION

In view of the foregoing, it is recommended that the Respondent’s Class C-08 License Number 108151 be revoked on the effective date of this order (thirty-five [35] days after the date of mailing by the Registrar).

Done this day, June 10, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826