ALJDEC decisions subject to certification as final

07F-H0277-ROC · Registrar of Contractors · 2008-01-23

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2008 APPEARANCES: Complainant: Joanne Nix appeared, pro per. Respondent: Respondent did not appear either personally or through any authorized representative or counsel. Registrar of Contractors: Inspector William Redman 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 via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 23, 2007. 2. Complainant Joanne Nix (“Complainant”) is the owner of a residence located at 2775 N. Evans St., Kingman, Arizona (“premises/project”). 3. Respondent Hernandez Masonry and Excavating (“Respondent”) is a sole proprietorship owned by Jean Catherine Hernandez (“Hernandez”) who holds and is the qualifying party for Arizona Contractor’s License No. 204629, Class K-31 (Dual Masonry) issued by the Registrar of Contractors (“ROC”) on February 23, 2005. 4. Complainant filed a complaint with the Registrar of Contractors on December 18, 2006 wherein she alleged, inter alia, various problems with a block wall and retaining wall constructed by Respondent. 5. Inspector William Redman (“Redman”) conducted a jobsite inspection on January 10, 2007 and issued a Corrective Work Order on January 11, 2007 wherein he directed Respondent to perform corrective work on items 1, 3 and 4; no remedial action was required on item 2. 6. On the basis of Complainant’s complaint, the Registrar issued a CITATION AND COMPLAINT in Case No. H07-0277 on December 12, 2006 charging Respondent with possible violations of A.R.S. §32-1154A 7, 23 and 3 (namely, R4-9-108, the workmanship rule). 7. Respondent filed an answer on June 4, 2007 wherein it asserted a general denial of all allegations and affirmatively stated, inter alia, that the wall was done properly and no retaining wall was installed per contract. 8. At the hearing, Complainant testified and submitted Exhibits C-1, C-2 and C-4 through C-8 which were marked, admitted and considered. Complainant’s husband, Alan Nix (“A. Nix”) also testified on behalf of Complainant. 9. Respondent failed to appear either through authorized representative or counsel. 10. Inspector Redman testified on behalf of the Registrar of Contractors and described his observations and conclusions on his initial June 10, 2007 jobsite inspection and pre-hearing jobsite inspection on December 26, 2007. 11. Based on his pre-hearing jobsite inspection, Inspector Redman opined that no change had occurred at the project since his initial jobsite inspection. Redman further related that Corrective Work Order Items 1 (retaining wall, i.e., “garden wall”) (Exhibits C-1C, C-1D and C-1E), 3 (holes at each end of the rear fence wall) (Exhibits C-1G and C-1H) and 4 (fence wall next to the house on the north side, i.e.,“wing wall”) (C-1A) still do not meet minimum workmanship standards in that, inter alia, their footings are higher than the premises’ foundation. Inspector Redman further testified that the “cap blocks” addressed by Corrective Work Order item 2 were not part of the parties’ contract and did not require any corrective measures by Respondent. 12. Complainant testified that the original contract proposal for $7,536.00 (Exhibit 2, page 2) was amended by the parties to include eight foot (8’) caps ($200.00) and a “garden ret.”[1] ($100.00) to bring the total contract price to $7,836.00 on August 1, 2006. 13. Complainant paid Respondent $4,100.00 on August 1, 2006 which represented one-half (1/2) of the original contract price plus the cost of the caps and garden retaining wall. Complainant also paid Respondent $3,600.00 on August 25, 2006 which brought the total amount paid to $7,700.00. Complainant further related that Respondent never provided the block caps but did not understand Respondent’s calculations and, therefore, the discrepancy of $136.00 from the contract price. 14. Complainant contends that the footings for the fences are too high and will be improperly exposed when she levels out the side and back yards. 15. Referencing Exhibits C-1 and C-5, Complainant asserted that she wants to be compensated for the cost of having another contractor correct the work done by Respondent and does not want Respondent to perform any further work on the project.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. H07-0277 charged Respondent with possible violations of A.R.S. §32- 1154A 7, 23 and 3 (namely R4-9-108, the workmanship rule). 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.

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, Complainants 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. This tribunal determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent failed to properly construct the walls pursuant to the parties’ contract as set forth in Findings of Fact 11 through 15 in violation of A.R.S. §32-1154A (23) and (3) (R4-9-108, the workmanship rule). 5. This tribunal further determines and concludes that the violations set forth in Conclusion of Law 4 above were wrongful and resulted in substantial injury to Complainant. Therefore, a violation of A.R.S. §32-1154A (7) has been proven as cited. 6. It is further determined and concluded that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith in response to the Registrar of Contractors’ inspector’s Corrective Work Order. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse which shall serve as factors in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing thirty (30) days from the effective date of the Registrar’s Order entered in this matter, the Class K-31 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has caused to be corrected by another licensed contractor items (1), (3) and (4) of the Registrar of Contractors’ January 11, 2007 Corrective Work Order. IT IS FURTHER RECOMMENDED that if Respondent causes to be accomplished the above-required work on Corrective Work Order items (1), (3) and (4) on or before the expiration of thirty (30) days from the effective date of the Registrar’s Order, or is unreasonably denied access for such purpose, the above license suspension shall not take place.[2] Done this day, January 23, 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. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Garden retaining wall. [2] 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 in this matter will be forty (40) days from the date of that certification.

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