ALJDEC decisions subject to certification as final

08F-F0204-ROC · Registrar of Contractors · 2009-07-15

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2009 APPEARANCES: Complainant: Brandon W. Tointon appeared, pro per. Respondent: Respondent failed to appear either through authorized representative or counsel. Registrar of Contractors: Inspector Mark Schweiger 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 Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”) on April 17, 2009. 2. Complainant Brandon W. Tointon (“Complainant”) is the owner of a residence located at 3867 E. Jacamar Drive, Flagstaff, Arizona (“premises/project”). 3. Respondent Strong Rock, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 186404, Class C-05 (Residential Pavers) issued by the ROC on June 25, 2003. Elio Francisco Vianna is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended July 1, 2009, for nonrenewal. 4. Complainant filed a Complaint with the Registrar on June 1, 2008, wherein he alleged, inter alia, problems with Respondent’s installation of pavers “at the top of driveway” and “back porch” of the premises. 5. Registrar Inspector Mark Schweiger (“Schweiger”) conducted a jobsite inspection on June 30, 2008, and issued a Corrective Work Order on July 9, 2008, which required Respondent to perform corrective work on “pavers at the back patio and driveway [which] appeared to have settled at random areas in excess of allowable standards.” 6. On February 25, 2009, the Registrar issued a Citation and Complaint in Case No. F08-0204 charging Respondent with possible violations of A.R.S. § 32-1154(A) (7), (23) and 93) (namely, R4-9-108, the workmanship rule). 7. Respondent filed an Answer on March 11, 2009, wherein it asserted, inter alia, that it had tried “to solve this matter twice on [sic] the end of July of 2008 and nobody was home.” 8. At the hearing, Complainant testified but submitted no exhibits. 9. Respondent failed to appear either by authorized representative or counsel. 10. Inspector Schweiger testified on behalf of the Registrar and described his observations and conclusions on his initial jobsite inspection and pre-hearing inspection on July 13, 2009. 11. On the testimony and evidence of record, the following salient facts are important to note: a. Complainant purchased the premises in December 2007 from Empire Communities (“Empire”); b. In the Spring of 2008, Complainant noticed defects in the pavers located in the driveway and rear patio of the premises; c. On May 19, 2008, Complainant contacted Respondent regarding the paver problems at which time Respondent related that such issued needed to be addressed with Empire; d. On July 21, 2008, Respondent contacted Complainant to advise that it would appear at the project the following day to remedy the pavers; e. Respondent failed to appear on July 22, 2008, and has made no attempt to perform corrective work on the pavers; f. Inspector Schweiger testified that the pavers in the driveway had collapsed and/or sunk on the South side and the concrete ribbon on the edge of the driveway which serves to anchor the pavers in place had cracked. Schweiger further related that he noted “marked settling and severe slanting” of the pavers on the rear patio at the Western exterior wall and in the area West of the arcadia door. Schweiger stated that the status of the driveway and patio pavers does not allow proper drainage in the described areas and, in general, does not meet minimum workmanship standards; g. Schweiger further opined that the condition of the driveway and patio pavers had deteriorated since the original jobsite inspection.

APPLICABLE LAW The Citation and Complaint issued by the Registrar Case Nos. F08-0204 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.

…

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 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 Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154(A) (23) by failing to comply with the Registrar’s July 9, 2008 Corrective Work Order regarding Respondent’s installation of the driveway and patio pavers as related in Finding of Fact 11. 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154(A) (3) and A.A.C. R4-9-108 by failing to construct in a workmanlike manner the Corrective Work Order items set forth in Finding of Fact 11 and Conclusion of Law 4. 6. This tribunal determines and concludes that based on the violations set forth in Conclusions of Law 4 and 5 above, Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154(A) (7) as charged in the issued Citation in Case Nos. F08-0204.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the C-05 license of Respondent be revoked unless the Registrar receives written proof that Respondent has remitted to Complainant a sum adequate to allow Complainant to retain a third party contractor to correct those items referenced in Conclusions of Law 4 and 5. IT IS FURTHER RECOMMENDED that if Respondent remits to Complainant a sum adequate to allow Complainant to retain a third party contractor to correct said items on or before the effective date of the Registrar’s Order then, in that event, no license revocation shall take place. IT IS FURTHER RECOMMENDED that, in the event Respondent timely remits to Complainant the above-referenced sum, Respondent’s Class C-05 license be suspended for a period of thirty (30) days commencing on the effective date of the Order entered in this matter.[1] Done this day, July 15, 2009.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] 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