ALJDEC decisions subject to certification as final

2010A-422309-ROC · Registrar of Contractors · 2011-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 1, 2011, at 8:15 a.m. APPEARANCES: Complainant Elizabeth Sweigart appeared on her own behalf; Respondent Roland Murphy Stahnke dba Artform Construction did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In March 1992, the Registrar of Contractors (“the Registrar”) issued License No. ROC092927, Class B for residential general contracting to Roland Murphy Stahnke doing business as (“dba”) Artform Construction. Respondent’s address of record is 6010 East Burris Lane, Flagstaff, Arizona 86004-1203. On or about September 15, 2009, the Registrar received a complaint from Elizabeth Sweigart (“Complainant”) against Respondent concerning Respondent’s installation of siding and decking on Complainant’s 45-year- old cabin at 7550 North Lake Trail, Flagstaff, Arizona 86001. The Registrar designated Complainant’s complaint as Case No. F10-0042. The Registrar’s inspector, Mark Schweiger, performed a jobsite inspection in Case No. F10-0042. On October 1, 2009, Inspector Schweiger issued a Corrective Work Order (“CWO”) to Respondent, directing him within fifteen calendar days to perform certain corrective action, in relevant part as follows: From the facts now before us and due to the verbal nature of the contract there appears to be two areas of Industry deficiency associated with workmanship. The materials used appear to have excessive amounts of sap that has [sic] bled out of the rough sawn boards and the aesthetics are poor as a result. Correct by appropriate means. There are excessive gaps at random locations at the vertical laps between the boards and there is excessive cupping. Correct by appropriate means. On January 7, 2010, the Registrar’s Flagstaff office received a letter from Complainant that she was ready to proceed with a hearing in Case No. F10- 0042.[1] The Registrar redesignated Complainant’s complaint as Case No. 2010-422309. On April 26, 2011, the Registrar issued a Citation and Complaint in Case No. 2010-422309 against Respondent, charging violations of A.R.S. § 32- 1154(A)(2), (23), and (3), namely A.A.C. R4-9-108. Respondent filed a timely written answer to the Citation and Complaint in Case No. 2010-422309, denying any violations and affirmatively alleging that his contract with Complainant was for labor only, and that she had furnished the siding. Respondent’s written answer showed his address of record. The Registrar referred Case No. 2010-422309 to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On June 9, 2011, the Registrar issued a Notice of Hearing in Case No. 2010- 422309, setting a videoconference hearing on August 1, 2011, at 8:15 a.m. at the Registrar’s Flagstaff office. The Registrar sent a copy of the Notice of Hearing to Respondent at his address of record. A videoconference hearing was held on August 1, 2011. Because Inspector Schweiger was unavailable, the Registrar’s inspector based in Kingman, Arizona, William Redman, testified about his prehearing jobsite inspection and the Registrar’s standards. Complainant testified and submitted fourteen pages of exhibits. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his license. Complainant testified that Respondent had not done anything to comply with the CWO. Inspector Redman testified that he performed a prehearing jobsite inspection on July 8, 2011. Inspector Redman testified that although he called Respondent, Respondent did not call back, and that only Complainant attended the prehearing jobsite inspection. Inspector Redman testified that the siding on Complainant’s house was improperly nailed and had excessive gaps between the boards that would allow rodents to enter. Inspector Redman testified that the rear deck was no longer attached to Complainant’s house. Inspector Redman testified that sap was running down the whole length of Complainant’s house, indicating that the siding was green when Respondent installed it and had not dried sufficiently to be used as siding. According to the Registrar’s record, Respondent’s license was current and in good standing on the date of the hearing in this matter. CONCLUSIONS OF LAW The Notice of Hearing that the Registrar mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing.[2] This matter lies within the Registrar’s jurisdiction.[3] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Respondent did not submit any evidence to establish that the parties’ contract only required him to provide labor or that he was not responsible for deficiencies in the green siding that he installed at Complainant’s house. Complainant established that Respondent’s installation of green siding on her house with excessive gaps, and failure to attach the rear deck securely to the house violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[7] and that Respondent’s failure to repair the siding to comply with the CWO violated A.R.S. § 32-1154(A)(23).[8] Complainant did not submit any evidence to establish that Respondent’s work departed from plans, specifications, or applicable building codes, in violation of A.R.S. § 32-1154(A)(2).[9] RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar suspend License No. ROC092927, Class B previously issued to Respondent Roland Murphy Stahnke dba Artform Construction until Respondent has corrected the green siding and gaps between boards in the siding, and has reattached the back deck to Complainant’s house. It is further recommended that the Registrar not suspend Respondent’s license but, instead, close Case No. 2010-422309 if on or before the effective date of the Registrar’s order, Respondent provides written proof that is satisfactory to the Registrar that he has corrected the green siding and gaps between boards in the siding, and has reattached the back deck to Complainant’s house in a professional and workmanlike manner. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, August 17, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Due to the historic budget shortfall in Arizona, the Registrar closed the Flagstaff office, except for hearings, and reassigned Inspector Schweiger to the Phoenix area. By the time of the hearing in this matter, Inspector Schweiger had retired. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 32-1101 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] 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.” [8] 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.” [9] 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.”

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