ALJDEC

00F-G0319-ROC-com · Registrar of Contractors · 2002-03-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2002 APPEARANCES: Complainant : Frank Long represented himself at the hearing. Respondent : Ed Pongratz, Sales Executive, appeared for Royce Walls of Phoenix, Inc. Registrar of Contractors : John Ratcliff, Inspector, testified concerning the Registrar’s involvement in this matter. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Evidence and testimony were received at the hearing conducted on March 5, 2002 in Phoenix, Arizona. The purpose for the hearing was to consider Mr. Long’s complaint concerning an alleged failure by the contractor herein, Royce Walls of Phoenix, Inc., to substantially comply with the Registrar’s Order of September 15, 2000, wherein was adopted the Administrative Law Judge’s Recommended Decision and Order of September 13, 2000. Based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent (hereafter also, the “subcontractor”) is in the business of constructing masonry walls, doing business in the state of Arizona as Royce Walls of Phoenix, Inc., and holding a Class C-31 license issued by the Registrar of Contractors. 2. Complainant (hereafter also, the “homeowner”) and Respondent are not contracted parties. Complainant purchased his residence from Palacia Homes, a residential general contractor. Palacia Homes, in turn, subcontracted the construction of the block wall for Complainant’s property to the Respondent. 3. In due course, Complainant filed a timely complaint with the Registrar of Contractors alleging that Respondent had violated provisions of the State’s contracting laws in the construction of the walls. 4. Acting on the complaint, the Registrar’s assigned inspector performed a jobsite inspection to view the areas of alleged deficient workmanship. The observation resulted in the Inspector’s issuance of a “Corrective Work Order” dated March 7, 2000, requiring Respondent to perform remedial work to specified areas of alleged deficient workmanship. 5. After having received evidence at the August 24, 2000 hearing of Mr. Long’s complaint, the assigned Administrative Law Judge determined that Respondent had complied with the Registrar’s “Corrective Work Order.” 6. However, the Administrative Law Judge found that there were evident additional areas of deficient workmanship concerning which Respondent was deemed responsible. The top course of Complainant’s wall was found to be experiencing an extraordinary high degree of loose blocks. There were discovered various areas of vertical and stair step cracking of the walls, especially the West wall. And, the additional top course on the West wall was determined not to meet the design intent of the Proto II design; it was directed that the top course be removed. 7. The Administrative Law Judge further determined that there was presented insufficient evidence of record to support a finding that the setting pads required corrective action. On the contrary, there was found credible evidence that the setting pads had acceptable torsional safety factors. 8. The Administrative Law Judge further noted that any allegation contained in Complainant’s amended complaint that was not specifically addressed in his Recommended Decision and Order was deemed to lack credible evidence of record to support a finding of a violation of the State’s contracting laws by the Respondent subcontractor. 9. The Recommended Decision and Order, adopted by the Registrar in its entirety, found the evidence of record sufficient to establish that Respondent had violated the provisions of A.R.S. § 32-1154(A)(7) and (3); namely Rule R4-9-108. 10. The Recommended Decision and Order, adopted by the Registrar in its entirety, did not find the evidence of record sufficient to establish that Respondent had violated the provisions of A.R.S. §32-1154(A)(23). 11. Thereafter, Complainant Long’s September 28, 2000 Petition for a Rehearing was denied by the Registrar on October 25, 2000. 12. On November 16, 2000, the Respondent subcontractor moved the Registrar to close the file on Mr. Long’s complaint asserting that Mr. Long had exhibited a pattern of denying access to the subcontractor for the remedial work concerning which the subcontractor had been directed by the Registrar to accomplish. The Registrar denied the motion on November 29, 2000. 13. On February 5, 2001, Respondent gave notice to the Registrar that it had ostensibly completed the work. Thereafter, on February 21, 2001, Complainant filed a written notice to the Registrar contesting Respondent’s representation that the work had been accomplished. 14. In light of Mr. Long’s protestation, the Agency scheduled a “compliance inspection”[1] undertaken by Inspector Ratcliff on April 4, 2001. Mr. Ratcliff filed a “Compliance Inspection report” on April 16, 2001 wherein was concluded that the subcontractor had substantially complied with the Registrar’s directive. The Inspector did, however, inter alia, report that the subcontractor had agreed to repaint the wall, albeit the Registrar had not previously directed the subcontractor so to do.[2] 15. The Registrar issued an Order of Closing, based upon the Inspector’s observations and report, the Order dated May 3, 2001. 16. On October 16, 2001, Complainant requested that the Registrar reopen the case. The request was denied by correspondence of the Registrar’s Chief Legal Counsel on October 24, 2001. 17. However, the Agency thereafter reopened the matter and issued to the parties notice on November 28, 2001 that the Agency would conduct a compliance hearing in due course. 18. At the hearing, Complainant expressed his concern for two items with which he remains dissatisfied, attributing his disconcertion to the subcontractor’s acts and omissions. The first concern has to do with the painting of the perimeter wall(s). The second concern relates to the East Wall of which Complainant alleges that the structure is manifesting “buckling” and that the subcontractor is responsible therefor. 19. Respondent asserts that it is and has been at all times ready and willing to repaint the walls; nevertheless, according to the subcontractor, the homeowner has obstructed the subcontractor’s efforts to accomplish the task by denying the subcontractor access thereto. 20. Complainant alleges that the East Wall “buckling” condition was addressed by the subcontractor’s expert at the underlying hearing thereby obviating concerns over the notice requirements of A.R.S. ( 32-1155(A).[3] In an effort to afford Complainant every opportunity to obtain a fair hearing, the homeowner was invited by the Administrative Law Judge to file a copy of the Respondent’s expert’s written report upon which the expert had testified at the hearing on the merits of the homeowner’s complaint.[4] Having done so, and the Administrative Law Judge having examined the report, it is found that the expert, Chris Atkinson, P.E., did, in fact, address the problem by noting in his “Site Observations and Comments” that the wall was ( inch out-of-plumb over a four foot vertical length. According to Complainant, only foundational failure could cause the wall to “buckle” as it has. 21. At the compliance hearing, the Registrar’s Inspector acknowledged the condition but observed that (1) the Complainant had not asserted objection to the condition in his original complaint, and (2) the issue was not addressed by the Administrative Law Judge’s Recommended Decision and Order. Further, the Inspector asserted that it was too late in the day to entertain the complaint as more than two years had elapsed since the homeowner had moved into the residence (the move-in occurring on April 1, 1999). 22. It is noted that the Respondent’s expert did not recommend further corrective work to be done to the wall.[5] It is further noted that the Administrative Law Judge presiding over the hearing on the merits determined that insufficient evidence was presented to warrant a finding that the subcontractor needed to take further action on this issue.[6] 23. The weight and sufficiency of the evidence preponderates that Respondent has substantially complied with the Registrar’s Order of September 15, 2002. 24. Notwithstanding that determination, the subcontractor, by admission of the subcontractor at the Compliance Hearing, and recognition thereof by the Registrar’s Inspector, is responsible for the repainting of the masonry walls. 25. However, in that this matter has run such a long and convoluted course, and given an apparent inability of the parties to engage in positive interaction, it is fitting and advisable that Respondent pay Complainant a sum[7] to have the walls repainted by a third-party licensed contractor. A sum of $500. should be adequate for the performance. 26. On the remaining issue, that of the “buckling” in the East Wall, it is found that the matter has been decided under the evidence proffered and received at the hearing on the merits. The Administrative Law Judge has issued his decision and the Registrar has issued his Order. It is not for a Compliance Hearing to reopen the record for an examination of the evidence previously received and relied upon by the Registrar in the issuance of his Order; neither is it intended that a Compliance Hearing be convened to give a party a “second bite at the apple” as it were.

CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[8] Further, the standard of proof is that of the “preponderance of the evidence”.[9] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[10] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Complainant, is more probably correct on the issue(s) in dispute. 2. Observing these standards, Complainant has not successfully carried his burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law by failing to substantially comply with the Registrar’s Order of September 15, 2001. 3. Notwithstanding these findings, based upon the testimony of the Inspector, that it is industry standard to repaint masonry walls previously painted prior to being disturbed for correction and repair, and based upon the evidence that the parties are not capable of mutual cooperation toward the end that the painting be accomplished in a workmanlike manner, the Registrar should direct the Respondent subcontractor to make payment to Complainant in the amount of $500. and provide written proof to the Registrar of such payment before the Registrar should issue an Order closing the complaint herein.

RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar issue an Order closing the complaint herein, upon written notice from the Respondent subcontractor of payment to the homeowner of the sum of $500., as set forth in the above Findings and Conclusions, prior to the effective date of the Registrar’s Order.

Done this 8th day of March in the year 2002. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

----------------------- [1] The Agency advised the Complainant in its March 1, 2001 letter to Complainant, under signature of the Agency’s Chief Legal Counsel, that the Inspector would only be reviewing items concerning which had been addressed in the Registrar’s Order of September 15, 2000. Therefore, counsel advised the homeowner to consider the filing of an additional complaint should the homeowner desire that the Agency entertain expressions of disconcertion over work not previously addressed by the Registrar. [2] Mr. Ratcliff testified at the “Compliance Hearing” that a repainting falls within a standard expectation. [3] The statute provides that the Registrar may issue a citation against a licensed contractor upon complaint charging the contractor with commission of an act susceptible to discipline by suspension or revocation occurring within two years prior to the date of the filing of the complaint. [4] The expert’s report was not contained within the record. [5] Expert’s Recommendations Nos. 3 and 5. [6] See, Recommended Decision and Order, Finding of Fact No. 15. [7] At the Compliance Hearing, the parties agreed that it would cost between $400. and $500. to have the walls repainted. [8] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [9] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [10] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

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