ALJDEC decisions subject to certification as final

07F-A0527-ROC · Registrar of Contractors · 2008-07-21

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2008 APPEARANCES: Complainant: Brian and Lori Symiczek appeared, pro per. Respondent: Seth Douglas Gibson, Jr., owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Cliff Fransden appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made: … …

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated July 10, 2008.[1] 2. Complainants Brian and Lori Symiczek (“Complainants”) are the owners of a residence located 2650 W. Willow Breeze, Chino Valley, Arizona (“premises/project”). 3. Respondent Seth Douglas Gibson, Jr. (“Respondent”) is an individual doing business as Gibson and Sons Construction who holds and is the qualifying party for Arizona Contractor’s License Number 181634, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) January 22, 2003. A review of the licensing database maintained by the ROC indicates that this license was suspended June 12 – 25, 2007 (A06-0516) and February 10 – 20, 2008 for lack of bond. 4. Complainants filed a complaint with the ROC on April 25, 2007 to which they annexed to paragraph 5 thereof a list of thirty-five (35) items “that need repair.” 5. Registrar of Contractors Inspector Cliff Fransden (“Fransden”) conducted a jobsite inspection on May 15, 2007 and issued a Corrective Work Order on June 4, 2007 which required Respondent to perform corrective work on items 6 (kitchen slider threshold came loose), 10 (master bathroom, two cracked tile), 11 (master bath shower, cracked grout in left bottom corner) and 25 (both rear piller, ½ moon crackes [sic] in concrete). 6. Complainants filed a request for hearing on June 29, 2007 wherein they asserted that only Corrective Work Order items 11 and 25 remain unresolved. Contemporaneously, Complainants asserted that Respondent “acknowledged he would repair” items 16 and 17 (garage entry issues) and 4, 12, 13, 14, 20, 27, 31 and 33 (drywall repairs). 7. On October 11, 2007 the Registrar issued a CITATION AND COMPLAINT in Case No. 07F-A0527-ROC charging Respondent with possible violations of A.R.S. §32-1154A 7, 23 and 3 (namely, A.A.C. R4-9-108, the workmanship rule). 8. Respondent filed an answer on October 24, 2007 wherein he alleged, inter alia, that he had remedied item 11, the issue pertaining to item 24 had been resolved to his benefit in Case No. A06-0516, it was determined by the ROC inspector that he was not responsible for items 16 and 17 and items 4, 12, 13, 14, 20, 27, 31 and 33 “were found to be within tolerance by the ROC Inspector.” 9. On October 29, 2007, Respondent filed a notice of compliance with the Corrective Work Order. 10. On November 6, 2007, Complainants filed a reply to Respondent’s notice of compliance wherein they contested Respondent’s compliance assertions. 11. Prior to the presentation of evidence, Complainants stipulated that Corrective Work Order item 6 had been satisfactorily remedied by Respondent and that only items 11 and 25 remained in issue. 12. At the hearing, Complainant Brian Symiczek (“B. Symiczek”) testified and submitted exhibits 1 – 8 which were marked, admitted and considered. 13. Gibson testified at the hearing but submitted no exhibits. 14. Inspector Fransden testified on behalf of the Registrar of Contractors and described his observations and conclusions regarding the cause of item 25 of the Corrective Work Order.[2] 15. Notwithstanding remedial attempts by Respondent, item 11 (master bath shower, cracked grout in left bottom corner) still does not meet minimum workmanship standards. 16. A factual dispute exists between the parties regarding Corrective Work Order item 25 (both rear piller, ½ moon crackes in concrete [sic]). Complainants contend that the subject cracks were an issue right after move in February 2006 of which Respondent was timely apprised. Complainants further assert that the cracks have worsened over time as demonstrated by Exhibits 2 and 3. Complainants deny they contributed in any fashion to the cause of the subject cracks notwithstanding the decision in the other ROC matter between the parties (06F-A0516-ROC). Conversely, Respondent relied on the decision in the above-referenced matter and asserts that Complainants somehow caused a significant amount of water to stand on the subject patio for an extended period of time which resulted in the cracks at issue. Inspector Fransden opined that the subject cracks were caused by the accumulation of a massive amount of water which adversely affected the expansive soil under the slab and/or pier around each post as determined in the above-reference matter. 17. Respondent is not responsible for performing remedial work on Corrective Work Order items 16 and 17 and 4, 12, 13, 14, 20, 27, 31 and 33. Although Respondent may have volunteered to correct such items at the initial jobsite inspection as Complainants posit is reflected in Exhibit 5, such offer was gratuitous and unsupported by any consideration, not required by the Inspector Fransden’s Corrective Work Order and, by specific reference, retracted in Respondent’s answer. 18. 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. 19. Based on all of the facts and circumstances presented herein and, in particular, the apparent acrimonious relationship between the parties, 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 and, 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.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. A07-0527 charged Respondent with possible violations of A.R.S. §32- 1154A 7, 23 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

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23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. 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.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) by failing to properly comply with Corrective Work Order item 11 as set forth in Finding of Fact 15 notwithstanding remedial efforts performed thereby. 5. It is further determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108, the workmanship rule, by failed to construct and/or repair in a workmanlike manner Corrective Work Order item 11 as set forth in Finding of Fact 15. 6. This tribunal determines and concludes that based on the violations set forth in Conclusions of Law 4 and 5 above, Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7) as charged in the issued Citation in Case No. A07-0527. 7. It is further determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated any provision of A.R.S. §32-1154A as it pertains to any other item of the subject June 6, 2007 Corrective Work Order issued by the Registrar of Contractors. 8. This tribunal further determines and concludes that Respondent’s prior disciplinary suspension in Case No. A06-0516 shall serve as a factor in aggravation in this matter. … … … … RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class B license of Respondent be suspended for a period of seven (7) days. IT IS FURTHER RECOMMENDED that, commencing at the conclusion of the above-referenced suspension, Respondent’s Class B license be placed on probation for a period of thirty (30) days. Done this day, July 21, 2008.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By _______________________ ----------------------- [1] The date on the mailing certificate on the Notice of Hearing indicates “July 10, 2008.” However, the Office of Administrative Hearings received the Notice on June 10, 2008. [2] During the course of the hearing, the parties requested an opportunity to confer with Inspector Fransden off the record regarding his initial inspection and pre-hearing jobsite inspection. Thereafter, Respondent called Fransden to testify in his case-in-chief at which time only item 25 was addressed by either party.

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