ALJDEC decisions subject to certification as final

2010A-308472080-ROC-res · Registrar of Contractors · 2013-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2013, at 8:00 a.m. APPEARANCES: Complainant P.J. Brummer appeared on her own behalf; Respondent J T Sotomayor Construction Affordable Materials Inc. was represented by Roger W. Strassburg, Jr., Esq., Roger Strassburg P.L.L.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedure On or about October 6, 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.200368-R for general residential contracting to J T Sotomayor Construction Affordable Materials Inc. (“Respondent”). John Anthony Sotomayor is the qualifying party, officer, and the only person listed on Respondent’s license. On or about April 1, 2010, P.J. Brummer (“Complainant”) filed a Complaint with the Registrar that alleged 24 specifically enumerated deficiencies in Respondent’s construction of a perimeter block wall, landscaping, and concrete repairs at Complainant’s property at 510 South 83rd Place, Mesa, Arizona. According to the Complaint, the responsible contractor’s name was “Affordable Const.” and “Tony Sotomayor,” with the name, “John,” crossed out. The specific deficiencies that Complainant alleged included the following: 5) SE corner of Block wall [torn] down by Tony Sotomayor on @ Tues 02-09-2010 → needs to be rebuil[t] per plot plan drawn by Tony Sotomayor and approved by Bradl[e]y – Architectural Board member. . . . . . . .

7) Mesa Pd #[number redacted] filed Mon 02-01-2010 on Contractor Sotomayor to NOT teardown or remove any part of Block wall – See #5. . . . .

15) Drain installed during wall construction needs to be uncovered: Tony covered up drain pipe during the Complaint Repairs for neighbors along with the tear down of SE Corner . . . .

Complainant requested that the complaints by homeowners Haug, Chapman, and MacDonald in Case Nos. 10-1981, 10-1983, and 10-1979 be consolidated with her Complaint for hearing. Complainant included a narrative in the Complaint that she filed with the Registrar that included the following statements: John Sotomayor holds a License, but is NOT who was hired to do the work on our property. The Brummers[’] first meeting with John was @ Dec 2009 when the ROC inspector came to property with (3) three neighbors[’] [complaints] which I list in our [complaint] forms. – Most of the neighbors[’] [complaints] are/were of repair – Lack of completion on the job and poor [workmanship]. There are some [complaints] on neighbors[’] [complaint] forms which are NOT true. The architectural Committee signed a project form which included the SE corner of Block wall to be in place – which has been torn down by *John Sotomayor. Again John is NOT the contractor that has been [in] all the agreements with the projects on our property – it has been Tony Sotomayor – only on or about Tues 02-09-2010 John [sent] crew to property and tore SE corner down of Block wall. This action was taken after Mesa Pd #[number redacted] 02-01-2010 told Sotomayor to = NOT TEAR down OR remove any parts of Fencing till the ROC Admin Hearing. . . .

The Complaint was assigned to the Registrar’s inspector, Geoff Galgan, for investigation. Inspector Galgan performed an onsite inspection on or about April 29, 2010. Because the Registrar did not receive the notice of change of address that Respondent had filed, Respondent’s representative did not receive notice of Complainant’s Complaint or notice of the April 29, 2010 jobsite inspection.[1] Respondent did not attend Inspector Galgan’s jobsite inspection. Based on Inspector Galgan’s observations and Complainant’s statements to Inspector Galgan at the jobsite inspection, on May 10, 2010, the Registrar issued a Corrective Work Order (“CWO”) that required Respondent to perform certain corrective actions with fifteen calendar days, in relevant part as follows: 1. CMU wall cap was to be installed prior to the installation of the electrical wiring but instead wall was capped before the electric could be installed- contractor to correct by the appropriate means

2. Complainant would like this complaint simultaneously with three other complaints filed by the adjoining property owners- the three complaints in question have been closed by their respective filers at this time

3. South East corner return wall was torn down by the respondent without the complainants consent- installation of the wall should mirror that of the approved plan, if it does not then it should be corrected by the appropriate means

4. Wall was not properly backfilled- contractor to correct by the appropriate means

5. Complainant was forced to file a police report after the removal of a section of the wall without the complainant’s approval- this would appear to be a police matter between the parties and beyond the jurisdiction of AZROC

6. No river rock was delivered or installed as contracted for- contractor to correct by the appropriate means

7. Respondent has failed to deliver and install the correct amount of plants as contracted for- contractor to correct by the appropriate means

8. Some of the installed plantings have since died- contractor to correct by the appropriate means if the plants have died within the warranty period

9. Tree was removed by the respondent in the course of construction and has not been replaced- it is the opinion of this inspector that he could not verify what existed prior, no action required of the contractor

10. Construction debris has not been cleaned up or removed- contractor to correct by the appropriate means

11. Block perimeter wall is not stuccoed as agreed to- contractor to correct by the appropriate means

12. Tree/ trellis supports not installed in the cmu wall as contracted for- it is the opinion of this inspector that the work should be constructed as agreed to and if it has not been, it needs to be corrected by the appropriate means

13. Storm drain was covered up during the course of construction- contractor to correct by the appropriate means

14. Mortar joints are not straight or neat and there are many visible voids- contractor to correct by the appropriate means

15. Rear wall was to be straight but instead has four inch offset and the wall itself has a visible it bow in- contractor to correct by the appropriate means

16. Complainant reserves the right to have the job constructed correctly- it is the opinion of this inspector that he does not disagree with this statement

17. Person who did the work was not the person she contracted with- this inspector cannot verify that the person who did the work and/sold the work was or was not in the employ of the license holder, no action required of the contractor

18. Plants not supplied of planted as contracted for- contractor to correct by the appropriate means

19. Complainant has met with City of Mesa and all is documented- this item added for informational purposes because this inspector cannot verify what took place

20. Sleeved post holes not installed as contracted for- contractor to correct by the appropriate means

21. Several sections of fence have not been completed- contractor to correct by the appropriate means

22. Concrete repairs at posts are of poor quality- contractor to correct by the appropriate means

23. Respondent’s employees’ stole complainant’s personal property- this item would be best addressed in another venue

24. Concrete debris has not been cleaned up- contractor to correct by the appropriate means

After Complainant’s Complaint was not resolved, she requested a hearing. The Registrar issued a Citation and Complaint charging Respondent with possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). After Respondent failed to file a timely written answer to the Citation and Complaint, the Registrar issued a Decision and Order based on Respondent’s default. Respondent appealed the Decision and Order to superior court and eventually obtained a superior court order remanding the matter to the Registrar to allow Respondent a second opportunity to file a timely written answer to the Citation and Complaint. After remand, Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that it did not contract to perform any work at Complainant’s property and that, instead, Tony Sotomayor, John Sotomayor’s father, had contracted to perform and had performed the work without Respondent’s authorization or knowledge. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on April 17, 2013. Because Inspector Galgan had left state service, Inspector Jeff Fleetham performed a prehearing inspection and testified. Complainant submitted ten exhibits and testified on her own behalf. Respondent submitted 28 numbered pages that comprised thirteen exhibits and presented the testimony of two witnesses: (1) John Sotomayor; and (2) Tony Sotomayor. Hearing Evidence The Contract and the Performance of the Contract Tony Sotomayor testified that a friend who was not associated with Respondent referred him to Complainant because she wanted to build a 6’ high block wall on her property. Tony Sotomayor testified that he calls his construction business “Affordable Landscaping” or “Affordable Construction” and that he operates the business as a sole proprietor. Tony Sotomayor testified that he knew that the architectural review committee of Complainant’s homeowners’ association, Fountain of the Sun Homeowners Association, would have to approve construction of the block wall. Tony Sotomayor testified that he obtained a pamphlet that indicated that only licensed contractors were allowed to submit plans for the homeowners’ association’s approval. Complainant submitted a handwritten bid that showed the name of the contractor as “Affordable Mat. J.T. Const.” by “Tony Sotomayor – John Sotomayor,” an address in Apache Junction and two telephone numbers, a scope of work that included 275 lineal fee of 6’ high grey block wall and “Landscaping mat + Labor” for the price of $8,300.00, and Respondent’s license number. The bid also acknowledged receipt of check no. 5954 in the amount of $4,000.00 on April 18, with no year provided. The document concluded with the notation, “Thank you,” and the signature, “Tony.”[2] Tony Sotomayor testified that he drafted the bid with Respondent’s license number on it to comply with the requirements set forth in the pamphlet. Tony Sotomayor testified that he was not employed by Respondent or authorized to act on its behalf, that he did not give Respondent a copy of the bid with its license number on it, and that he never paid Respondent any of the $4,000.00 that Complainant paid him. Tony Sotomayor testified that the address and phone numbers shown on the bid were his personal address and home and cell phone number. Tony Sotomayor testified that Complainant called him four times a day about the job on his personal telephones. John Sotomayor testified that Respondent never authorized Tony Sotomayor to act on its behalf, that Respondent did not know anything about Complainant’s job at the time Tony Sotomayor entered the contract and performed the work, that Respondent did not direct any of the work that Tony Sotomayor and his laborers performed at Complainant’s property, and that Respondent did not receive any of the money that Complainant paid Tony Sotomayor for the job. John Sotomayor testified that he never spoke to Complainant during the job. Tony Sotomayor testified that he told Complainant that he was unlicensed but that he had to use his son’s license number to obtain the approval of the architectural review committee. Complainant denied that Tony Sotomayor ever told her that he was unlicensed. Instead, she testified that she contacted the Registrar and confirmed Respondent’s license number on the bid. Respondent submitted an original drawing of a plot plan that showed 133 lineal feet of 4’ high block wall on the west side of Complainant’s property, 126 lineal feet of 4’ high block wall on the south side of Complainant’s property, and two mounds of dirt in the back yard on the south side of the house with a river between them.[3] The plot plan did not show any block wall on the southeast side of Complainant’s property. Tony Sotomayor testified that he prepared the plot plan to show to Complainant’s homeowners’ association. Respondent submitted an application to the Fountain of the Sun Homeowners Association Architectural Review Committee dated May 17, 2009, that showed that it was delivered by Tony Sotomayor of “Affordable Const.” with his cell phone number as the contact number. The application set forth the following scope of work: 4’ Block Wall – 8”x8”x16” block 12”x14” Footings Rebar Rebar 3’ centers grouted. 2 mounds 8’x12’x1½’ barrel & saguaro cactus on mounds. Rock placed on mounds. Existing Rock to be moved out (small River use leftover rock)[4]

The application did not show Respondent’s name or license number. The copy of the drawing that was attached to the application is the same as the original drawing and does not show any block wall on the southeast side of Complainant’s property. Tony Sotomayor testified that he submitted the application on Complainant’s behalf to her homeowners’ association for approval. Respondent submitted the Fountain of the Sun Homeowners Association’s May 20, 2009 letter approving the project “to build a 4 foot high block wall along the west and south sides of your property, with a 5 foot set back from the curb, and to landscape your back yard with rock and dirt located in piles throughout your yard . . . .”[5] The May 29, 2009 letter did not mention a short return wall on the southeast side of Complainant’s property. Respondent also submitted a copy of the plot plan with Elizabeth Bradley’s signature. The plan is mostly the same as the original drawing, but also shows a 5’ long return block wall on the southeast side of Complainant’s property with the notation “changed/add to project.”[6] The record does not reflect who added the return wall to the plan or when the change was made. Tony Sotomayor testified that he started performing work on Complainant’s project with a crew of two or four day laborers. Tony Sotomayor testified that he, not Respondent, paid the laborers. Complainant testified that although the laborers spoke only broken English, they informed her that they worked for Respondent and were building her wall on their days off. John Sotomayor testified that none of Tony Sotomayor’s laborers worked for Respondent at the time they worked on Complainant’s project. Respondent submitted a letter from the City of Mesa stating that “[p]er section 11-13-2(H) of the City of Mesa Zoning Ordinance a 6-foot wall is permitted in a residential zoning district along the exterior boundary of the side and rear yards. As long as the wall does not exceed 6-feet in height, a building permit will not be required. . . .”[7] Tony Sotomayor testified that before he and his laborers could complete Complainant’s project, she “ran them off.” Tony Sotomayor denied that the police were involved when Complainant removed him and his crew from her property. Complainant’s Neighbors’ Complaints Complainant’s neighbors who owned the adjoining properties on the west, south, and east sides of her property filed complaints with the Registrar regarding the wall that Tony Sotomayor and the laborers had started building. John Sotomayor received Complainant’s neighbors’ complaints from the Registrar and attended the December 18, 2009 jobsite inspection that Inspector Galgan had scheduled on those complaints. John Sotomayor testified that a representative of Complainant’s homeowner’s association also attended the jobsite inspection. John Sotomayor testified that he first learned about the wall that Tony Sotomayor had constructed on Complainant’s property when he received the complaints that Complainant’s neighbors had filed with the Registrar. John Sotomayor testified that after he informed Inspector Galgan that Respondent did not contract with Complainant or construct the wall, Inspector Galgan advised him that the complaints would be more of a problem for Respondent if it did not simply fix the workmanship about which Complainants’ neighbors complained. Tony Sotomayor testified that he attended Inspector Galgan’s December 18, 2009 jobsite inspection on Complainant’s neighbors’ complaints. Tony Sotomayor testified that he informed Inspector Galgan that Complainant had run his crew off her property. Respondent submitted into evidence a portion of Inspector Galgan’s notes of the December 18, 2009 jobsite inspection in Case Nos. 10-1979, 10-1981, and 10-1983 that provided in relevant part as follows: Respondent agreed to correct the items in the complaints by the appropriate means/ stated he was [not] able to finish the job due to the fact that he was [ordered] off the property by the homeowner who had contracted him to do the job.

Inspector- cmu perimeter fence that was to be stuccoed and painted/ wall is in an unfinished state with open cross and bed joints/ wall was to be 48” high max and was 56” in some places/ the wall was not contracted for by the 3 parties in the various [complaints] but was [contracted] for by a fourth party whose property is adjacent to the ones in the complaint/ at one point the person who contracted the wall phoned the Mesa pd/ also claimed that the inspector and the complaining parties had trespassed/ myself or any of the complaining parties had not set foot on her property/ Mesa PD left the scene with no action taken/ Inspector- a return wall was built in the SE corner that was not on the plan and might impede the [exfiltration] of storm water down what appeared to be the natural [drainage] pattern/ there was a lead built in the SW? corner that the ends of the block were not cut in a workman like manner

[Complainants] appeared to be satisfied if the wall was constructed as per plan and finished [correctly]

Inspector- the owner of the property phoned the ROC and spoke to both asst chiefs[] of inspections Davies and Duncan to voice her displeasure with the inspector and the fact that she was not notified/ and that inspector trespassed in her opinion[8]

Respondent submitted into evidence the first page of a Corrective Work Order dated December 21, 2009, in the complaint filed by Lurae Chapman in Case No. 10-1983 on which corrective action was required for the first item, in relevant part as follows: Plans submitted by the respondent, for the installation of a CMU fence, show no return wall at the SE corner but upon construction a wall was installed in that section that will impede the flow of water- no return wall was indicated on the plan provided, contractor to correct by the appropriate means

John Sotomayor testified that he took Inspector Galgan’s advice at the jobsite inspection and ordered Respondent’s crew to remove the return wall on the southeast side of Complainant’s property and to apply stucco to the side of the block walls that faced Complainant’s neighbors’ properties to comply with the Corrective Work Orders that were issued in Case Nos. Case Nos. 10-1979, 10-1981, and 10-1983. John Sotomayor testified that Respondent undertook the repairs at its own expense and without any compensation from the complainants in those cases. Tony Sotomayor testified that Complainant’s homeowners’ association required him to remove the return wall on the southeast corner of Complainant’s property to allow drainage because the wall would hold back water. Inspector Fleetham testified that he was not involved in and had not researched the complaints that Complainant’s neighbors had filed with the Registrar in Case Nos. 10-1979, 10-1981, and 10-1983. Inspector Galgan testified that because the Registrar’s records only showed one open complaint against Respondent’s license and no discipline, he assumed that the complaints had been resolved. Tony Sotomayor testified that Complainant called the police five or six times during the course of his construction and during the Registrar’s investigation of Complainant’s neighbors’ complaints. Tony Sotomayor denied that the Mesa Police Department ever ordered him not to tear down the return wall on the southeast side of Complainant’s property. Complainant did not submit the police report referenced in the Complaint that she filed with the Registrar. The police report was not located in the electronic record that the Registrar provided to the OAH in this matter or in the first remand from superior court. Respondent submitted Mesa Police Department Report #2010-0400194 by Officer R. Sweet, Badge #07348, of an incident on February 9, 2010, that provided the following narrative: On 02/09/10 at approx. 0758 hours, I was sent to an unknown disturbance report. The address of the call was 510 [S.] 83rd Place, Mesa, Arizona. The complainant was listed as (RP) Pamela Brummer. I was aware of Brummer’s situation due to a number of past calls and contacts with Brummer. Upon arrival, I observed two subjects standing with Officer Ortiz #15214 on the street in front of Brummer’s home. I also observed Brummer standing at the front of the Arizona room speaking on the phone. I spoke with the two subjects standing with Officer Ortiz. They were identified as (IO) Gerald Deits and (IO) Elizabeth Bradley. Both Deits and Bradley are members of the Fountain of the Sun Homeowner’s Association Board. I asked what had occurred. Bradley stated that Brummer was very upset at her (Brummer’s) contractor – Affordable Construction Company – that built the exterior property wall around the Brummer property. She stated the contractor was instructed by the AZ Registrar of Contractors to remove a section of the exterior block property wall. Bradley said that the [contractor] was removing the wall and Brummer was screaming and demanding the contractor leave the property. The exterior property wall of the Brummer property has been a source of continuous problems between Brummer’s neighbors, Brummer and the contractor. Bradley stated that when the contractors completed removing the section of wall, they left the area. I asked Bradley if she observed the contractors enter Brummer’s property. Bradley said she did not observe the contractors enter Brummer’s property. She said the contractors removed the wall from the adjacent neighbor’s property.

I was escorted to the area [where] the wall was removed by Bradley and Deits. We did not enter Brummer’s property while walking to the section of the wall. The section of the wall was located on the southeast corner of Brummer’s property. I did observe a short section of wall was removed attaching the wall to an existing wall [that] runs north to south. Bradley stated the AZ Registrar of Contractors ordered the section of wall be removed. She said complaints had been filed by the neighbors and an inspection was completed. After the inspection, the AZ Registrar of Contractors inspector issued an order to remove the block wall because it was improperly completed. . . .

Officer Ortiz and I walked to the front of the Brummer home and spoke to Brummer. Brummer stated the block wall was illegally removed. I explained that the incident was a civil matter. I further explained that I had knowledge of the situation and would assist her. Brummer stated she did not want any assistance from me. . . .

On February 10, 2010, at 10:00:16 hours Officer Sweet filed a supplement to the original report that provided in relevant part as follows: ON 02/10/10 AT APPROX. 0830 HOURS, I RECEIVED A PHONE CALL FROM ARIZONA REGISTRAR OF CONTRACTORS INSPECTOR GALGAN. HE INFORMED ME THAT HE DID REQUIRE THE BLOCK FENCE TO BE REMOVED AS STATED IN THIS REPORT.

According to the date stamp on the police report, Complainant provided Report #2010-0400194 to the Registrar’s Legal Department on July 3, 2012. Complainant testified that she was talking to the Registrar’s office on February 9, 2010, when the police officers arrived. Complainant testified that she has filed a complaint against Officer Ortiz and informed the Mesa Police Department that he is not allowed on her property. Inspector Fleetham testified that the Registrar does not normally order contractors to demolish or remove construction. Inspector Fleetham testified that in rare cases, the Registrar may require a contractor to remove and replace an item. Inspector Fleetham testified that normally the Registrar orders contractors to correct construction deficiencies by appropriate means. The Remaining Workmanship Deficiencies Inspector Fleetham testified that he performed a prehearing jobsite inspection on February 8, 2013, and that he did not find that any corrective work had been performed to comply with the May 10, 2010 CWO. Inspector Fleetham testified that he agreed with the requirements of the CWO and that all of the items still required correction. Inspector Fleetham testified that Respondent was not allowed to attend the prehearing inspection at Complainant’s request. Inspector Fleetham testified that John Sotomayor informed Inspector Fleetham in a telephone call that Respondent had not contracted with Complainant or built the block wall. Inspector Fleetham testified that he could not see if electrical conduit had been installed under the cap of the fence (CWO Item No. 1). Tony Sotomayor testified that before the hearing, he had never seen the May 10, 2010 CWO. Tony Sotomayor testified that Complainant wanted him to install PVC conduit in every fourth cell of the wall because she had problems with her neighbors and wanted to install sensors that would prevent her neighbors from throwing stuff into her yard. Tony Sotomayor testified that he did not agree to install electrical conduit and that the parties’ entire agreement was set forth in the May 17, 2009 application that he delivered to the Fountain of the Sun Homeowners Association Architectural Review Committee.[9] Tony Sotomayor testified that Complainant’s neighbors and homeowners’ association were watching his crew every day to make sure that only the approved work was performed. Complainant submitted photographs of the 5’ long return wall on the southeast corner of her property (CWO Item No. 3) that were taken after it was initially constructed and shortly before the hearing. The photograph of the wall that was taken shortly after it was constructed showed that stucco had been applied to the wall, there was an opening at the bottom of the wall for drainage, and there was a pipe that was partially covered by leaves in the ground several feet in front of the wall.[10] The photographs of the wall in its current condition show loose blocks stacked on top of each other, without mortar and without any opening for drainage in the bottom of the wall, but show that the pipe is still present in the ground several feet in front of the wall.[11] Inspector Fleetham testified that the return wall that he saw at the prehearing inspection consisted of loose blocks stacked on top of each other, without mortar. Tony Sotomayor testified that he did not stack the blocks that were shown in Complainant’s photographs of the return wall in its current condition. The record does not reflect who stacked the blocks for the return wall on the southeast side of Complainant’s property after Respondent or Tony Sotomayor removed the wall. Complainant testified that she hired Tony Sotomayor’s laborers to perform some work at her property, but that the work did not involve any of the work that addressed in the May 10, 2010 CWO. Inspector Fleetham testified that at the prehearing inspection, Complainant told him that Respondent was supposed to fill an area of the yard with rock to finish the landscaping (CWO Item No. 4). Inspector Fleetham testified that the river rock referred to in CWO Item No. 6 was the same backfill referred to in CWO Item No. 4. Inspector Fleetham acknowledged that none of the site plans that were submitted into evidence referred to river rock. Tony Sotomayor testified that the only river rock that he was supposed to install was for the river between the two mounds in Complainant’s back yard and that he was supposed to use existing rock that was already on Complainant’s property. Tony Sotomayor testified that none of Complainant’s photographs showed the landscaping, but that he thought that he had completed the work. Inspector Fleetham testified that he understood that after the May 10, 2010 CWO was issued, Respondent did not return to the job or install any plants (CWO Items Nos. 7 and 18). Inspector Fleetham acknowledged that he had no basis for the directive other than Complainant’s statements. Tony Sotomayor testified that the only plants that he had undertaken to install were the barrel cactus and saguaro cactus referred to in the May 17, 2009 application to the Fountain of the Sun Homeowners Association Architectural Review Committee. Inspector Fleetham testified that the Registrar only requires that contractors install live plants and does not require that contractors provide a warranty for the plants (CWO Item No. 8). Inspector Fleetham testified that he did not know whether any plants had died within the warranty period. Inspector Fleetham testified that on April 8, 2013, Complainant informed him that the jobsite had been cleaned up some (CWO Item Nos. 10 and 24). Tony Sotomayor testified that cleanup is usually performed at the end of a job and that because Complainant ran him and his crew off before the job was complete, he was not able to complete cleanup. Inspector Fleetham testified that he did not have a copy of the parties’ contract and that the Registrar does not require contractors to apply stucco to all block walls to comply with standards (CWO Item No. 11). Tony Sotomayor testified that he still needed to apply stucco to Complainant’s block wall (CWO Item No. 11) and to clean up the jobsite (CWO Item Nos. 10 and 24) to complete his scope of work under the contract, but that Complainant would not allow him back on the property to complete the job. Inspector Fleetham testified that he had no way of knowing whether a tree trellis was required by the parties’ contract (CWO Item No. 12). Inspector Fleetham testified that because the project was not complete and the original 5’ long return wall had been torn down, the trellis had not been installed. Tony Sotomayor testified that he did not know anything about a trellis and that it was not part of the parties’ contract because it was not included on the May 17, 2009 application to the Fountain of the Sun Homeowners Association Architectural Review Committee. Inspector Fleetham testified that Complainant’s photographs of the current condition of the 5’ long return wall on the southeast corner of her property showed a pipe on the outside of the wall that he assumed to be a storm drain (CWO Item No. 13). Based on the fact that the pipe was not as visible in Complainant’s photograph of the wall before it was torn down, Inspector Fleetham testified that it looked like someone might have uncovered the storm drain. Inspector Fleetham also testified that because there was no opening at the bottom of the stacked blocks from which water could drain from the yard, the CWO had not been fully complied with. Tony Sotomayor pointed out that Complainant’s photograph of the 5’ long return wall on the southwest corner of her property before it was torn down showed a hole at the bottom of the wall for drainage.[12] Inspector Fleetham testified that the mortar joints in the block wall were not straight and that there were many voids (CWO Item No. 14). Inspector Fleetham also testified that mortar was weeping from the joints and needed to be scraped off prior to the application of stucco.[13] Inspector Fleetham acknowledged that the rear wall on the south side of Complainant’s property appeared ready for the application of stucco, but testified that the wall on the west side of the property did not appear ready for the application of stucco. Tony Sotomayor testified that before he applies stucco to a block wall, he goes along the wall with a grout bag and fills in voids and removes excess grout. Tony Sotomayor testified that both walls are suitable for the application of stucco. Tony Sotomayor pointed out that Complainant’s photographs showed that stucco had been successfully applied to the outside face of the block walls that faced her neighbors’ properties.[14] Complainant submitted photographs of the four-inch offset of the rear wall on the south side of her property[15] and of an area where the wall was not plumb[16] (CWO Item No. 14). Tony Sotomayor testified that Complainant had instructed him to construct the rear wall with an offset to follow the property line. Inspector Fleetham testified that although he is not familiar with staggered property lines, it would not be a substandard practice for the contractor to follow the property owner’s instructions on a project of this scope. Tony Sotomayor testified that it has been at least three years since he has seen the wall, but that every 20 or 30 feet, he usually leaves a space in the wall to allow for expansion. Tony Sotomayor testified that Complainant’s photographs that Inspector Fleetham testified showed a section of the wall that was not plumb in fact showed a space that he had left for expansion. Inspector Fleetham testified about and Complainant submitted a photograph of a crack in the outside of a wall to which stucco had been applied.[17] None of the specific complaints on the Complaint that Complainant had filed with the Registrar or the May 10, 2010 CWO involved a crack in the block wall. Tony Sotomayor testified that he usually repairs cracks that develop in a wall at no charge to the customer, but that Complainant will not allow him back on site to perform any repairs. Inspector Fleetham testified that Complainant did not submit photographs of the sleeved post holes that she stated that Respondent should have installed (CWO Item No. 20). Inspector Fleetham testified that Complainant showed him an area at the carport where she stated that sleeves for metal columns should have been installed. Tony Sotomayor testified that he did not undertake to perform any work on Complainant’s carport and pointed out that such work was not included on the May 17, 2009 application to the Fountain of the Sun Homeowners Association Architectural Review Committee. Inspector Fleetham testified that the wall was incomplete because the return at the southeast corner of Complainant’s property had not been replaced and stucco had not been applied to the inside of the walls that faced Complainant’s property (CWO Item No. 21). Tony Sotomayor testified that he was willing to repair and complete the project if Complainant allowed him to do so. Inspector Fleetham testified that the posts at Complainant’s carport were chipping and flaking (CWO Item No. 22). As noted above, Tony Sotomayor testified that he did not undertake to perform any work on Complainant’s carport. Other Evidence Tony Sotomayor testified that Complainant had not paid anything for the project after the initial $4,000.00 down payment and that the initial check that Complainant gave him had bounced. Complainant testified that Tony Sotomayor was always asking her for cash to pay his laborers. Complainant testified that based on her review of the receipts, she had spent more than $20,000.00 for the block wall. Complainant also testified that her homeowners’ association had imposed numerous fines for deficiencies in the block walls. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[18] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[19] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[20] 3. Complainant did not establish that she had any contact with John Sotomayor or Respondent until her neighbors filed complaints with the Registrar about the block wall that Tony Sotomayor contracted to build on her property. Although the bid had Respondent’s license number on it, neither the contractor’s name, address, or telephone numbers corresponded to the information that would have been provided by the Registrar for Respondent. Respondent’s correct name and license number were not on any of the other documents that Mr. Sotomayor prepared as part of his contract with Complainant. Complainant did not establish that Respondent authorized or knew about the project that Tony Sotomayor had undertaken at her property. Complainant’s statements in the Complaint that she filed with the Registrar confirm that she contracted with Tony Sotomayor, not with Respondent, and that Tony Sotomayor, not Respondent, performed all of the work about which she complained, with the exception of the 5’ long return wall on the southeast corner of her property that was removed. 4. Because Complainant did not establish that Respondent contracted to construct or constructed the project, she did not establish that it abandoned the project in violation of A.R.S. § 32-1154(A)(1),[21] departed from plans and specifications or any building codes in violation of A.R.S. § 32-1154(A)(2),[22] or violated any rule adopted by the Registrar in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[23] 5. The record does not establish whether the return wall was added to the plan after the architectural review committee approved it or whether Complainant’s homeowners’ association changed its mind after initially approving the modified plan. Respondent established that Complainant’s neighbors objected to the return wall and that Complainant’s homeowner’s association required or acquiesced in Respondent’s removal of the wall. Respondent also established that it removed the wall on February 9, 2010, to comply with the CWO that was issued in the complaint that Complainant’s neighbor, Lurae Chapman, had filed with the Registrar in Case No. 10-1983. Because the December 21, 2009 CWO in Case No. 10-1983 provides a legal justification for Respondent’s failure to rebuild the wall to comply with the May 10, 2010 CWO in this matter, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23)[24] by failing to rebuild the wall. 6. Complainant’s dispute about the removal of the return wall is with her neighbors and homeowner’s association and they are not subject to the Registrar’s authority. Complainant must resolve this dispute in a forum that has jurisdiction over her neighbors and homeowner’s association. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order, Complainant P.J. Brummer’s Complaint in Case No. 2010- [number redacted]-ROC-res against Respondent J T Sotomayor Construction Affordable Materials Inc.’s License No. B.200368-R shall 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 40 days from the date of that certification. / / / / / / / / Done this day, May 2, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This Registrar previously determined these facts based on the evidence that was presented at the administrative hearing that was held on July 18, 2012, on the factual issues set forth in the court’s September 13, 2011 minute entry in Respondent’s appeal in Maricopa County Superior Court Case No. LC2011-000282-001 DT. [2] See Complainant’s Exhibit J. [3] See Respondent’s Exhibit 25. [4] See Respondent’s Exhibits 1-2. [5] Respondent’s Exhibit 8. [6] See Respondent’s Exhibit 9. [7] Respondent’s Exhibit 12. [8] Respondent’s Exhibit 28. [9] See Finding of Fact No. 21 above. [10] See Complainant’s Exhibit A. [11] See Complainant’s Exhibit C1-3. [12] See Complainant’s Exhibit A. [13] The weeping mortar and uneven mortar joints were shown in Complainant’s Exhibits D1-3 and F1-2. [14] See Complainant’s Exhibit E1-3. [15] See Complainant’s Exhibit D1-3; G1-3. [16] See Complainant’s Exhibit E1-3. [17] See Complainant’s Exhibit H3. [18] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. $2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [19] See A.A.C. R2-19-119(B)(2). [20] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [21] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [22] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [23] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [24] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 a written directive from the registrar.”

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