ALJDEC decisions subject to certification as final

07F-M2421-ROC · Registrar of Contractors · 2008-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2008, with further hearing scheduled for September 8, 2008, and continued further hearing on September 15, 2008. APPEARANCES: Complainant John Pochiro appeared on his own behalf. D. Jeffrey Craven, Esq. represented Respondent Stone Impressions, Inc. on April 30, 2008. Bill Lochert appeared on behalf of Respondent Stone Impressions, Inc. on September 15, 2008. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Stone Impressions, Inc. (“Stone”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Background The hearing of this matter initially convened on April 30, 2008. Complainant John Pochiro appeared on his own behalf. D. Jeffrey Craven, Esq. represented Stone. Due to the inability to conclude the presentation of all evidence in the allotted time, the hearing was adjourned and re- scheduled for further hearing on September 8, 2008. On August 28, 2008, counsel for Stone filed with the Office of Administrative Hearings a Notice of Withdrawal advising that Mr. Craven has withdrawn from representation of Stone. The further hearing of this matter was scheduled to convene on Monday, September 8, 2008 at 9:00 a.m. At the time set for hearing, Mr. Pochiro appeared on his own behalf. Stone failed to appear. However, Mr. Pochiro advised the tribunal that Stone’s qualifying party and representative, Bill Lochert, was in Tucson with his bother who was involved in a motorcycle accident. Mr. Pochiro further advised the tribunal that the parties had reached a resolution of the matter, however did not have an opportunity to memorialize the resolution in writing. Mr. Lochert had telephoned the Office of Administrative Hearings prior to the time set for hearing and advised a staff member of the same information provided by Mr. Pochiro. At the time set for hearing, Mr. Pochiro attempted to reach Mr. Lochert via telephone in order to place the terms of the resolution on the record, but was unsuccessful in his attempt. Based on the above, the Administrative Law Judge continued the further hearing to September 15, 2008 at 1:30 p.m. On September 15, 2008, the further hearing of this matter convened as noticed to the parties. Mr. Pochiro appeared on his own behalf. Mr. Lochert appeared on behalf of Stone. Mr. Lochert advised Mr. Pochiro and the tribunal that he no longer wished to resolve the matter. As such, the further hearing proceeded as scheduled. FINDINGS OF FACT Stone is the holder of a Class K-05 license (No. 211944) issued by the Registrar of Contractors (“ROC”). Bill Lochert is Stone’s qualifying party and corporate officer. In November 2006, Mr. Pochiro and his wife, Nancy, contracted with Stone for Stone to extend their existing patio and resurface the patio. See Copies of contract documents contained in the case file, the contents of which administrative notice was taken. On June 25, 2007, Mr. Pochiro filed a complaint against Stone with the ROC. In his complaint, Mr. Pochiro alleged the following: Surface flaking not adhering to cement, drainage not working, electrical faulty, not within code, shoddy workmanship, cool decking cracking and not adhering to cement. Wall cracking. Stone Impressions sent Steve out to see our complaints. Steve said it was normal. We don’t believe that. Extention (sic) not floated properly.

ROC Inspector Ted Gerold investigated Mr. Pochiro’s complaint. On August 2, 2007, Inspector Gerold conducted a jobsite inspection. Present for the inspection were Mr. Pochiro and Mr. Lochert. On August 8, 2007, following the jobsite inspection, Inspector Gerold issued a Corrective Work Order (“CWO”) under which the ROC gave Stone 15 days to take corrective action with respect to the complaint items as follows: CONTRACTOR TO CORRECT THE FOLLOWING BY APPROPRIATE MEANS:

1. ALL COATING DEFICIENCIES INCLUDING CHIPPING, CRACKING AND JOINT ALIGNMENT ESPECIALLY AT POOL CANTILEVER.

2. REMOVE COATING RESIDUE FROM POOL SURFACE.

3. THE CONTRACTOR MIGUEL MEJI (sic) CONTRACTED AND BUILT THE DÉCOR WALLS INCLUDING ELECTRICAL UNDER LICENSE # 190969 AND IS RESPONSIBLE FOR SUCH. NO ACTION IS REQUIRED BY STONE IMPRESSIONS FOR THE DÉCOR WALLS EXCEPT FOR THE COATING OF THEM.

7. Inspector Gerold conducted a pre-hearing inspection on April 29, 2008, at which Mr. and Mrs. Pochiro, Mr. Lochert, and Steven Ringenbach, Stone’s sales representative, were present. 8. Inspector Gerold testified that after he issued the CWO, he was told by Mr. Pochiro that Stone paid Miguel Mejia to construct the wall. Inspector Gerold testified that if this is so, Stone would then be responsible for the deficiencies in the wall, however, the contract between the parties did not address walls or wiring. Inspector Gerold testified with regard to the stress cracks, that the control joints are not aligned and that the cantilever has a control joint that does not line up with the control joint on the deck surface. Regarding the cement in the pool, Inspector Gerold testified that this is mainly on the bench and on the pool surface near the bench. Regarding the crack in the wall, Inspector Gerold testified that there is excessive cracking on the decor wall, some in the wall itself and some in the coating. Inspector Gerold made no finding regarding the electrical wiring. 9. Inspector Gerold testified that at the pre-hearing inspection, he determined that the alignment of the control joints had not been corrected, that the coating residue remains an issue, and the cracking of the coating is occurring mostly at the walls. 10. Mrs. Pochiro testified that Stone advised her that it would hire another contractor to construct the walls and perform the electrical work. Mrs. Pochiro credibly testified that Stone did not give her any information regarding Mr. Mejia, and that neither she nor her husband contacted Mr. Mejia. 11. Mrs. Pochiro further testified that approximately one month after Stone completed the project, she hosed the deck and it began to flake. She contacted Stone and Mr. Ringenbach inspected the deck. After his inspection, he agreed to correct the flaking. Stone also attempted to repair the flaking after the issuance of the CWO. Mrs. Pochiro testified that the repair work performed by Stone is a different color, and that when she brought this to Stone’s attention, she was told “it is as good as it is going to get”. She requested that Stone re-coat the entire area, and Stone refused. Mrs. Pochiro also testified that Stone failed to install a drain. Mr. Pochiro submitted into evidence photographs of the repairs made by Stone. See Exhibits A and B. These photographs were taken by Mrs. Pochiro in March 2007. 12. Eliodoro Pena, an employee of Stone, testified on behalf of Stone. Mr. Pena testified that Mr. Mejia constructed a wall at his own home prior to the Pochiros’ project. Mr. Pena testified that Mr. Mejia has never performed work for Stone, however, he referred him to the Pochiros after the Pochiros requested that a wall be constructed. Mr. Pena brought Mr. Mejia to the Pochiros’ home in order for them to meet him, but he was not part of Stone’s crew. Stone submitted into evidence as Exhibit 6 a copy of a business card that contains Mr. Mejia’s information and also contains the business name Arizona Residential Masonry with its respective ROC license numbers. 13. Mr. Ringenbach testified on behalf of Stone. Mr. Ringenbach testified that he was brought into the project after it was completed in order to help resolve the dispute. Mr. Ringenbach testified that Stone did not repair the wall because it did not construct the wall, and that such work is not within the scope of Stone’s license. Mr. Ringenbach testified that Stone repaired the joints and removed the cement from the top step of the pool. Mr. Ringenbach testified that he advised the Pochiros that he would attempt to contact Mr. Mejia in an effort to have him return to repair the wall. 14. Mr. Pochiro testified that he did not pay Mr. Mejia for the construction of the wall, however, Mr. Pena gave Mr. Mejia funds to purchase the materials for the construction of the wall. 15. Mr. Lochert acknowledged that Stone applied a concrete coating to the wall, however, testified that Stone did not construct the wall and was not paid to construct the wall, as Stone is not licensed to do such work. Mr. Lochert also testified that Mr. Pena’s exchange of funds with Mr. Mejia was for payment for work performed at Mr. Pena’s personal residence. 16. The Administrative Law Judge finds regardless of who constructed the wall, Stone admittedly applied a concrete coating to the wall after it was constructed, and that Stone, by proceeding to apply the coating, had effectively accepted the surface/condition of the wall as being adequate to support its work. Upon contracting to apply concrete coating to a concrete surface, and in conjunction therewith guarantee its workmanship, a contractor accepts the surface as being adequate to support its work. CONCLUSIONS OF LAW In this proceeding, Mr. Pochiro bears the burden to prove, by a preponderance of the evidence, that Stone is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(10), (A)(17), and/or (A)(23) as charged by the ROC in its January 10, 2008 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Pochiro met his burden of proof as to three of the ROC’s five charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Stone with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Stone failed to perform portions of its work at Mr. Pochiro’s home in a professional and workmanlike manner as evidenced by the numerous deficiencies in the coating, the misalignment of joints, and the coating residue on the pool surface. Therefore, the Administrative Law Judge concludes that Stone violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(10), a contractor is subject to discipline for “aiding or abetting an unlicensed person to evade the provisions of this chapter, knowingly combining or conspiring with an unlicensed person or acting as allowing one’s license to be used by an unlicensed person . . .” The evidence presented was insufficient to make a determination as to whether Stone has aided or abetted an unlicensed person to evade the provisions of this chapter, or knowingly combined or conspired with an unlicensed person. Therefore, the Administrative Law Judge concludes that Stone did not violate A.R.S. § 32-1154(A)(10). Under A.R.S. § 32-1154(A)(17), a contractor is subject to discipline for “knowingly contracting beyond the scope of the license or licenses of the licensee.” The evidence presented was insufficient to make a determination as to whether Stone knowingly contracted beyond the scope of its license. Therefore, the Administrative Law Judge concludes that Stone did not violate A.R.S. § 32-1154(A)(17). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued a CWO to Stone directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Stone failed to perform all of the required corrective work without valid justification. Therefore, the Administrative Law Judge concludes that Stone violated A.R.S. § 32-1154(A)(23). 8. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Stone committed wrongful acts that substantially injured Mr. Pochiro by failing to perform its work at his home in a professional and workmanlike manner and by failing to comply with the CWO. Therefore, the Administrative Law Judge concludes that Stone violated A.R.S. § 32-1154(A)(7). 9. Based on the foregoing, it is appropriate for the ROC to impose discipline against Stone’s Class K-05 license. 10. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Stone’s Class K-05 license. 11. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Stone’s license without providing a condition to reduce or eliminate same. 12. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Stone’s Class K-05 license subject to the condition that Stone can avoid such suspension by accomplishing the directives contained in the CWO, and correcting the deficiencies in the wall, given that Stone accepted the surface of the wall, in an appropriate, effective, and workmanlike manner, within thirty days of the effective date of the Order entered in this matter.[1] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Within thirty days of the effective date of the Order entered in this matter, Stone’s Class K-05 license (No. 211944) shall be suspended until the ROC receives written proof that Stone has accomplished the directives contained in the CWO, and corrected the deficiencies in the wall, in an appropriate, effective, and workmanlike manner. If the ROC receives written proof that Stone has complied with the foregoing conditions on or before the date specified above, then the above provided license suspension shall not take place. It is further recommended, in addition to the above-provided penalty, if any, that Stone pay the sum of $250.00 to the ROC by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Stone to pay the entire amount of the aforesaid civil penalty, on or before thirty days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Stone’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Stone, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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 40 days from the date of that certification. Done this day, October 29, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Armando Contreras, Acting Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] In the event that Stone is unable to match the color of the coating during the course of its repairs, accomplishing the ROC's directives in an appropriate, effective, and workmanlike manner may include re-coating the entire surface.

-----------------------

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