ALJDEC decisions subject to certification as final

2014A-3659-ROC · Registrar of Contractors · 2016-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2016, at 8:00 a.m. APPEARANCES: Joyce A. Alexander (hereinafter “Complainant” or “Ms. Alexander”) appeared on her own behalf. Curtis Lee Hardy DBA: Hardy Masonry, License No. 288448, (hereinafter “Respondent” or “Mr. Hardy”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR31.288448-D.[1] Respondent’s License is current. On September 12, 2014, Complainant filed a written complaint with the Registrar. The written complaint charged Respondent with poor or deficient workmanship on the exterior stucco work that Respondent applied to Complainant’s residence at 505 W. Oak Street, Winslow, Arizona (hereinafter “residence”). Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. On November 5, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R- 4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1) Rust stains coming through the stucco at numerous areas outside of the home. 2) Window screens stuccoed and cannot be removed. 3) Stucco has fallen out of areas at southwest corner of home and over nails. This is not in your license scope please read below. …. You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, they you may remedy those violations only be paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

On July 15th, 2015, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Testimony The assigned Registrar Investigator, Steve Philpott (hereinafter “Investigator Philpott”), testified that the original Registrar Investigator that had been assigned to this matter had retired. Investigator Philpott stated that he performed an onsite inspection at Complainant’s residence on Thursday, January 21, 2016. Investigator Philpott said that he observed that nothing had changed since the first onsite inspection conducted by the previous Registrar Investigator. Investigator Philpott said that rust spots were still coming through the exterior stucco on Complainant’s residence. Investigator Philpott said that Respondent’s exterior stucco work on Complainant’s residence failed to comply with applicable workmanship standards. Investigator Philpott’s testimony is found to be credible. Mr. Hardy testified that he has been in the construction business for over thirty years and has performed exterior stucco work all over the State of Arizona. Mr. Hardy stated that he has never seen anything like this. Mr. Hardy said that he applied the exterior stucco on Complainant’s residence in a workmanlike manner. Mr. Hardy opined that the cause of the rust spots was moisture from the interior of Complainant’s residence. Mr. Hardy said that he had tried numerous to times to correct the problem but that the rust spots keep coming back. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence.[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] Respondent performed exterior stucco work on Complainant’s residence. The performance of exterior stucco work is beyond the scope of Respondent’s CR31.288448-D License. Investigator Philpott credibly testified that he performed an onsite inspection at Complainant’s residence on Thursday, January 21, 2016. Investigator Philpott said that he observed that nothing had changed since the first onsite inspection conducted by the previous assigned Registrar Investigator and rust spots were still coming through the exterior stucco on Complainant’s residence. Investigator Philpott said that Respondent’s exterior stucco work on Complainant’s residence failed to comply with applicable workmanship standards. Complainant established by a preponderance of the evidence that Respondent’s work on the exterior stucco on Complainant’s residence failed to comply with applicable minimum workmanship standards. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32- 1154(A)(3). RECOMMENDed order In view of the foregoing, it is recommended that License No. CR31.288448-D of Respondent be suspended for a period of five (5) days. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, February 4, 2016. /s/ M. Douglas Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The scope of a CR31 License is as follows:

This classification allows the licensee to grout, caulk, sand blast, tuckpoint, mortar wash, parge, clean and weld reinforcing steel as required for the licensee to install or repair: 1. Masonry 2. Brick 3. Concrete block 4. Insulating concrete forms 5. Adobe units 6. Stone 7. Marble 8. Slate 9. Mortar-free masonry products [2] A.R.S. § 32-1154(A). [3] A.A.C. R2-19-119. [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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