ALJDEC

99F-2205-ROC-com · Registrar of Contractors · 2000-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2000 APPEARANCES: Complainants Andrea and Joseph Brennan were present. Respondent was represented by counsel, Andrew Peshek. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Renaissance Flooring, Inc. substantially complied with the terms and conditions of the Decision and Order issued on September 15, 1999. Based upon the entire record, the Administrative Law Judge submits the following Findings of Fact, Conclusions of Law and Recommended Order to the Director of the Registrar of Contractors: FINDINGS OF FACT Respondent Renaissance Flooring, Inc. (“Renaissance”) is the holder of a Class C- license (No. 109988), issued by the Registrar of Contractors. On September 8, 1999, a hearing was held before Administrative Law Judge Jordan, resulting from a citation and complaint issued to Renaissance by the Registrar of Contractors regarding poor workmanship surrounding tile installation at Complainants’ home. At the September 8, 1999 hearing, the parties entered into a settlement agreement wherein Respondent agreed to “replace the tile floor originally installed with like-kind ceramic tile with a butt joint installation, including removing the existing tile, preparing the floor for the replacement installation (with re-floating of the surface, if required for a proper installation), and correcting or repairing any damaged door jams and baseboards as required.” It is undisputed that Respondent complied with the actual terms of the afore-mentioned settlement agreement. However, Complainants contend that collateral damage resulted from Respondent’s re-installation of the tile at their home, specifically enumerated as follows: e. damage to entry door lock, which was replaced by Complainants at a cost of $48.16; f. counter support had to be replaced as it was originally cut to allow float and tile installation and the second tile installation was accomplished without the float; cost to Complainants was $261.55; g. entertainment center/wall unit was not set up after being moved back into family room; Complainants incurred a cost of $150.00 to have this done; h. broken fluorescent light fixture lens in kitchen; cost of replacement was approximately $60.00 for a matching set, although only one was broken; i. damage to ceiling fan in family room; j. living room carpet was cut approximately two inches at step for first tile install; carpet could not be stretched, necessitating replacement; k. float material stained carpet in master bedroom, necessitating replacement;[1] l. linoleum in laundry room damaged; estimated cost of replacement is $544.02; m. Complainants were billed for float during first tile installation; Respondent has agreed to reimburse Complainants the amount of $810.00, representing the amount Complainants paid for the float; Complainants have accepted this amount of reimbursement for this item; n. clean up of front yard. o. cover for phonograph was broken; replacement cost for entire item, as the cover alone cannot be replaced, is $479.95; p. end table was broken; cost to fix is $35.00; q. door knobs need to be cleaned and lubricated; cost for all eleven throughout the house is $99.00; and r. carpet in other bedrooms is stained and needs to be power-stretched. At the outset of the hearing the Administrative Law Judge informed the parties that compensatory damages were not recoverable at the instant proceeding and therefore items c and j would not be addressed. Based upon the evidence presented at hearing, the Administrative Law Judge finds that Complainants did not meet their burden of proving that Respondent caused the damage to the entry door lock, the fluorescent light in the kitchen, the damage to the ceiling fan in the family room, the damage to the turntable cover, the damage to the linoleum in the laundry room, the damage to the end table, or the necessitating of the cleaning and lubricating of each and every door knob in the house. It was undisputed that the float for the original tile installation was unnecessary. Therefore the Administrative Law Judge finds that Complainants are entitled to recover the cost of the counter support that had to be replaced as a result of the unnecessary float. The Administrative Law Judge finds that the evidence demonstrated that the carpet in the living room was unnecessarily cut and could not be stretched, and that the carpet in the master bedroom was stained by the unnecessary float material. Therefore, Complainants are entitled to recover the full replacement cost of these items. As the Complainants have already been reimbursed $242.62 of the $1,308.54 replacement cost, Complainants should recover the balance in the amount of $1,065.92. The last item that needs to be addressed is the condition of the carpet in the other bedrooms. The evidence presented demonstrated that the carpet is badly stained and is in need of power stretching. However, the evidence of record also demonstrated that these parties have experienced a complete breakdown of their working relationship. The instant matter is an administrative disciplinary proceeding relating to a contractor’s license. Thus, the Registrar is duty-bound to merely determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline. Based on all of the facts and circumstances presented herein, it is determined that it would be unwise and ill-advised for the Registrar to issue an Order requiring Respondent to return to Complainant’s premises to perform any necessary remedial work or cause another properly licensed contractor to do so. Therefore, the Registrar should depart from its normal procedure of allowing a contractor a final opportunity to complete necessary remedial work as a condition to avoid otherwise appropriate license disciplinary sanctions. All items and issues mentioned above, as well as others complained of by Complainants during the course of the hearing that are not specifically addressed above, were found either to not be relevant to this proceeding, not supported by the weight of the credible evidence, or determined to be more appropriately adjudicated in an alternative forum. CONCLUSIONS OF LAW 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). The undersigned Administrative Law Judge concludes based upon the evidence presented, that due to collateral damage deemed to be caused by Respondent, as set forth above, Respondent has not substantially complied with the Decision and Order issued on September 15, 1999. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class C license shall be suspended on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays to Complainants the sum of $2,380.09 on or before the effective date of the Order entered in this matter, and provides proof to the Registrar of Contractors of such compliance, then the above-provided license suspension shall not take place but instead Respondent’s Class C license shall be placed on a period of 30 days disciplinary probation. This alternative disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later.

Done this day, May 23, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of May, 2000, to:

Michael P. Goldwater Registrar of Contractors Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] The combined cost to Complainants for items f and g was $1,308.54. Complainants have already been reimbursed by Respondent in the amount of $242.64 toward this replacement cost.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826