ALJDEC decisions subject to certification as final

07F-G1976-ROC · Registrar of Contractors · 2008-04-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2008.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent was represented by its attorney, Marcy E. Mills, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Respondent was the selected specialty subcontractor that had provided and installed certain countertop and bathtub or shower surround features as part of the construction of a new residence for Complainant built and sold by the project’s general contractor, William Lyon Homes, Inc. (herein called “Lyon”).

2. The sole item of complaint in issue between the parties related to an incident occurring in August, 2006 when a beverage bottle shown to contain a liquid acetone

material had been left unlabeled and uncapped on the countertop in Complainant’s master bathroom.

3. At the outset of the scheduled hearing, Respondent renewed its Motion to Dismiss, previously denied by the Registrar, based upon the doctrine of res judicata contending that this same issue formed a portion of another administrative hearing and ultimate decision involving another separate complaint filed by Complainant against Lyon, the project’s general contractor. The ensuing recommended Order, adopted by the Registrar, determined this unlabeled and uncapped bottle issue adverse to Complainant on jurisdictional grounds. More specifically, the previously entered decision in the Lyon case determined that the Registrar lacked jurisdiction to act in matters where there were claimed violations of the rules and regulations of the United States Department of Labor’s Occupational Safety and Health Administrations (herein called “OSHA”). Respondent further contended that, despite the difference in the identities of the named responding parties, they were in privity on the complaint issue and also that Respondent’s personnel had testimonially participated in the prior hearing.

4. A subsequent Petition for Rehearing filed by Complainant was denied, but the matter is now the subject of Complainant’s further timely appeal to the Superior Court where such Judicial Review Action is presently pending. Consequently, the prior Decision and Order of the Registrar has not become fully final due to the initiation of such appeal by Complainant.

5. Recognizing the validity and applicability of the doctrine relied upon by Respondent, and also of its use defensively by a separate entity, it is nevertheless determined that the Complainant herein is not precluded from pursing available administrative remedies against this Respondent under the charges set forth in the formal Citation issued based upon the filed complaint herein. At most, the impact of the

prior decision would and did prevent the introduction of some portion of testimonial or documentary evidence directed to the supporting of any claim that the use, condition and non-removal of the acetone bottle would tend to constitute a proven violation of Federal OSHA regulations and standards.

6. The specified charged violations in this matter, as in the related prior matter, enumerated those sections of the State’s contracting laws authorizing the imposition of disciplinary penalties (i) for committing any wrongful act to the detriment of another person, (ii) for violating any safety laws of the State or Federal governments or (iii) for performing construction work in an unworkmanlike manner.[1] The Registrar of Contractors must be held to possess at least concurrent jurisdiction to hear and determine matters based upon asserted violations of these statutory provisions even if the underlying actions may also constitute violations, if proven, of statutory or regulatory provisions being administered by other agencies or tribunals and enforceable in other forums. In point of fact, many of Respondent’s objections to the introduction of certain evidence offered at the instant hearing were sustained in light of the prior holding. However, under all the circumstances, a granting of Respondent’s Motion to Dismiss on res judicata grounds is determined not to be appropriate or otherwise warranted.

7. Credible evidence adduced at the hearing tended to indicate that, on or about August 24, 2006, after the performance of needed warranty work by Respondent’s employed workers in the master bathroom of Complainant’s home, a small sized plastic beverage bottle, partially filled, containing acetone was left on the countertop in an uncapped and unlabeled condition.

8. The evidence further demonstrated that the acetone material, commonly used for cleaning purposes, was a hazardous substance, which, if not utilized and stored

properly, would pose a potential danger to the health and safety of the household occupants as well as to the structure itself from its fumes and flammable nature.

9. It appeared that Complainant, who was shown to possess above- average knowledge of and experience with the composition and properties of various chemicals, was away from the home at the time of Respondent’s warranty work performance. Complainant discovered the bottle immediately upon his return and promptly applied the cap and securely taped and stored the bottle and its contents elsewhere on the premises. In point of fact, such expeditions, commendable and prudent action on the part of Complainant served to prevent any damage or injury from occurring to any household member or to the dwelling itself.

10. Credible evidence also indicated that the actual bottle, saved and safely stored by Complainant, was subsequently delivered by Complainant to a representative of Lyon, the general contractor, during the course of a jobsite inspection held on or about January 16, 2007, almost five months after the within complaint incident, as part of the processing of the prior complaint filed against the general contractor. The bottle and its contents were removed from the jobsite and either appropriately disposed of or properly utilized by Lyon.

11. Although the project’s general contractor had been promptly made aware by Complainant of the uncapped and unlabeled bottle left on the jobsite, the evidence failed to indicate that such information was transmitted to Respondent prior to the filing of the instant complaint in mid-June, 2007, over nine months later. By that time the bottle had already been given by Complainant to the general contractor for removal from the jobsite.

12. The Respondent’s actual identified workman who had left the bottle on the countertop was shown to have terminated his employment with Respondent soon after

the above-described incident for wholly unrelated reasons. Moreover the credible testimony revealed that Respondent has continued to follow and to have intensified its policies of ongoing training of all employees in all aspects of their work functions encompassing technical, professional and safety-related considerations. Additionally, although not required to do so, Respondent has ordered, paid for and caused the regular use of specially pre-labeled acetone bottles by all of its field employees. Without even being able to verify and possibly defend against Complainant’s allegations, Respondent nevertheless communicated with Complainant very soon after being made aware of the filing of the instant complaint to express apologies for the apparently inadvertent, but perhaps careless, actions of its former employee and to ascertain what, if anything, could be done at that time to appease Complainant.

13. Construction is not a perfect science, and it is not unusual for items to require attention by way of correction, replacement or adjustment – often even more than once. No finding of a contracting law violation is generally supportable unless and until, after notice and a reasonable opportunity is given, a licensed contractor fails or refuses to rectify construction deficiencies.

14. Under the facts of this case, it must be found and determined that this Respondent was given neither adequate and timely notice nor any sufficient opportunity to rectify any prior errors or deficiencies in its construction work. Traditional notions of fundamental fairness and due process, especially applicable in these administrative disciplinary proceedings, require the affording of some reasonable opportunity to rectify any construction errors or, at the very minimum, to prepare and assert defenses to any charged violations. Respondent’s entry into the complaint process took place long after the incident occurred and after the removal of the acetone bottle from the premises. While Complainant’s dealings with only their general contractor from the outset on this and other construction issues, including the filing of his initial complaint and addenda against Lyon, were understandable and in accordance with standing instructions given

to all new homeowners under applicable purchase and construction arrangements, the much belated election to bring this Respondent into the disciplinary complaint process effectively deprived Respondent of any ability not only to defend against allegations of wrongdoing but also to undertake and complete appropriate remedial measures.

15. Nothing in the decision and recommendation is intended to condone or approve of the actions of Respondent’s employee or supervisory personnel in not assuring safe jobsite conditions or in not otherwise avoiding or preventing the exposure of others to potential dangers.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) 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 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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. Complainant was unable to sufficiently establish that Respondent has violated the spirit and intent of the provisions of the State’s contracting laws set forth in of A.R.S. §32-1154(A), as charged in the issued Citation and Complaint in this matter. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number G07-1976 be dismissed.

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-five (45) days from the date of that certification.

Dated: April 23, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 – 1906 ----------------------- [1] See A.R.S.§32-1154(A) (7), (12) and (3); namely, Rule R4-9-108, A.A.C.

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