ALJDEC decisions subject to certification as final

2011A-3485-ROC · Registrar of Contractors · 2011-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2011, at 8:00 a.m. APPEARANCES: Complainant Matthew Sosnow appeared on his own behalf; Respondent Soulliere Decorative Pavers, L.L.C. appeared through Scott Philip Soulliere, its member and qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In April 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. K-31.219199-D for dual masonry to Soulliere Decorative Pavers, L.L.C. (“Respondent”). On June 15, 2011, the Registrar received a complaint from Matthew Sosnow (“Complainant”) against Respondent regarding its installation of decorative pavers on the driveway at Complainant’s house at 11642 North 18th Street, Phoenix, Arizona. The Registrar assigned the complaint to its inspector, Jim Dimond, for investigation. On August 2, 2011, Inspector Dimond issued a Corrective Work Order (“CWO”) to Respondent, requiring it within fifteen days to correct certain deficiencies, in relevant part as follows: Item 1- ICPI standards not followed (no bedding sand, etc[.]). Manufacturer rep. present at the inspection indicated that the company will not warrantee [sic] this installation because of the following standards not being followed: A- ¼” minus is not an acceptable base B- The installation on a significant slope was not started at the bottom C- Very small stones were used as fillers at the radius border. The contractor is to correct the conditions so that the installation meets the manufacturer[’]s requirements in an appropriate manner.

Item 2- Environmental hazards (dust, oil and gas spillage) This was not present at the inspection. No action is required of the contractor.

Item 3- Harassment by owner (court ordered injunction received on 6/15/2011) Injunction Against Harassment [(“IAH”)] against the Qualifying Party has been granted and served in Maricopa County Justice Court case #CC2011-117395. The injunction is not against the company.

The QP is to comply with the IAH in an appropriate manner.

Item 4- Dangerous situation with heavy equipment. No heavy equipment was in use or even present at the time of inspection. No action is required of the contractor.

Item 5- Lack of proper equipment ie: square, extension cords, eye, ear and breathing equipment and dry cutting of stone. No work was being performed at the time of inspection. No action is required of the contractor.

Item 6- Owner was almost never at the jobsite as he had promised to oversee and run the crew. Inspector was not present during the work to determine this item. The owner is however, ultimately responsible for his crews and the installation.

Item 7- Owner wasted my time (start date was moved without proper notification (1 hour away over and over). While this is a poor business practice, the ROC lacks jurisdiction regarding customer services matters, however, this directive does have an end date for compliance.

Item 8- Littering by workers. This item was corrected by the complainant.

Item 9- Lack of experience (broken stones should have been in the cut area, wasted material). The inspector was not present during the work and cannot make a determination regarding this item.

Item 10- Owner sent people to my home to get paychecks resulting in a situation where I felt threatened. Police report #’s 1013339 & 1020849. The Inspector was not present for this incident and cannot make a determination regarding this matter.

(Emphasis in original.) On September 15, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2), (3), namely A.A.C. R4-9-108, (12), and (23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on December 12, 2011. Inspector Dimond testified. Complainant submitted one exhibit and testified on his own behalf. Respondent submitted one exhibit and presented the testimony of Scott Soulliere, its member and qualifying party. Hearing Evidence Inspector Dimond testified that Complainant, his father, and his girlfriend attended the jobsite inspection. In addition, two representatives of Bellgard, the company that manufactured the decorative pavers, attended the jobsite inspection. No one attended the jobsite inspection on behalf of Respondent because Inspector Dimond directed Mr. Soulliere not to attend due to the injunction against harassment against him. Inspector Dimond testified that he did not anticipate that Respondent would comply with the CWO because he could see Complainant’s driveway from Cave Creek Road and saw that the project had been completed. Complainant testified that Bellgard re-installed the pavers. Complainant testified that Mr. Soulliere made him feel unsafe during the time Respondent’s crew worked on the project. Complainant argued that the Registrar should revoke Respondent’s license to prevent it from treating another homeowner the way Mr. Soulliere had treated Complainant. Mr. Soulliere testified that “everything [he] did irritated [Complainant].” Mr. Soulliere testified that on the day that Complainant obtained the injunction against harassment against Mr. Soulliere, Complainant had brandished a weapon at Respondent’s crew and called them “vulgar names” and then called the police. Complainant submitted a copy of an order from the McDowell Mountain Justice Court dated August 10, 2011, dismissing the injunction against harassment. Complainant did not send a copy of the August 10, 2011 order to Respondent. Mr. Soulliere testified that he did not know until the hearing that Complainant’s injunction against harassment had been dismissed. Inspector Dimond testified that he had been subpoenaed to testify in an action in Justice Court in which both parties asserted claims against the other. Inspector Dimond testified that the Justice Court denied relief to both parties. According to the Registrar’s electronic record, on the date of the hearing, Respondent’s license was current and in good standing. This appears to have been the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license. Complainant did not establish any factors that justify a departure from this general principle. Bellgard’s repair of the pavers provides a legal excuse for Respondent’s failures to correct any departure from specifications or to comply with the CWO. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(2),[5] (3), namely A.A.C. R4-9-108,[6] or (23).[7] Complainant did not establish that Respondent violated any safety or labor laws or codes of the federal government, state, or political subdivisions of the state, in violation of A.R.S. § 32-1154(A)(12).[8] / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant Matthew Sosnow’s complaint in Case No. 2011-3485 against Respondent Soulliere Decorative Pavers, L.L.C.’s License No. K-31.219199-D. 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, December 20, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] 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.” [6] 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.” [7] 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.” [8] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure of a contractor to comply with any safety or labor laws or codes of the federal government, state or political subdivisions of the state.”

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