ALJDEC decisions subject to certification as final

2014A-3939-ROC · Registrar of Contractors · 2016-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

E OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2016 APPEARANCES: Denis Lee Poole appeared on his own behalf. Arroyo Building Solutions, LLC (Respondent) did not appear. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant Dennis Lee Poole is the owner/occupant of a residence located at 12459 South Ironwood Drive, Yuma, Arizona 85367. 2. Respondent holds Arizona Contractor’s License Nos. 280588, 252355, 298401. Two of Respondent’s licenses were revoked on December 11, 2015.[1] License 252355 was suspended for nonrenewal from March 1,2013 to February 28, 2014, expired March 1, 2014, and was revoked December 11, 2015, License 280588 was suspended for nonrenewal September 1, 2014- August 31, 2015, was suspended for lack of bond October 8, 2014, expired September 1,2015, and was revoked on December 11, 2015. The Registrar’s website did not yield any results for License No. 298401. 3. On September 20, 2014, Complainant filed a complaint with the Registrar alleging that Respondent had contracted to build him a new house and performed substandard work on the exterior stucco and interior flooring In the Complaint, Complainant explained that the exterior stucco was cracked and had different colors. He also stated that the floor was “done sloppy” and not grouted. 4. The Registrar assigned investigator Cort Bacon to investigate the complaint. Bacon performed a jobsite inspection on October 23, 2015. He was not called to testify at hearing but Complainant recalled Bacon telling him that both the floor and stucco presented workmanship problems. Complainant also remembered Bacon telling him the floor issue would pose an issue with the city. 5. The October 30, 2014 Directive Bacon issued to Respondent stated in pertinent part as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Repair exterior stucco by appropriate means in a manner that provide uniform color and texture. Repairs should include the hole in the south east corner of the parapet wall. Existing hairline cracks in the stucco are within acceptable tolerances per Arizona workmanship standards and do not require repair at this time.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

6. The Directive stated that the above work had to be completed by 5:00 p.m. on November 17, 2014. The Directive did not indicate that any corrective work was required with respect to the flooring. 7. Complainant testified that Respondent did not attempt repairs to the stucco in the time specified in the Citation. He noted that Respondent did send some guys to his home who said they were there to do the work, but he felt uncomfortable and sent them away. 8. On June 15, 2015, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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. On September 1, 2015, the Registrar determined that the Citation had not been sent to the Respondent’s address of record and quashed it. That same day, the Registrar reissued the Citation. It contained the same charges detailed above. 10. Respondent filed a timely written answer to the Citation and Complaint requesting that its license not be revoked because it was repairing the stucco by appropriate means to provide a uniform color and would be done no later than September 30, 2015. 11. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. 12. The Registrar issued a Notice of Hearing, setting a hearing at 8:00 a.m. on January 27, 2016, at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. 13. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 14. A hearing was held on January 27, 2016. Complainant offered the only testimony. He described the problems he saw with the floor and stucco. Regarding the floor, he stated it had not been grouted and had spots. He acknowledged that he telephoned Bacon after the jobsite inspection and Bacon denied ever telling Complainant the flooring was a problem that required corrective work. 15. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41- 1092.05(D) 4. Undisputed credible evidence in the record established Respondent did poor work on Respondent’s exterior stucco resulting in cracking and color that was not uniform. In its answer to the Citation, Respondent acknowledged that the exterior stucco required repairs. Thus, Complainant established Respondent’s work on the exterior stucco was not done in a professional and workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[2] 5. There is insufficient evidence to ascertain whether Respondent’s work on the floor was deficient. The interior floor was not included in the Directive and Complainant agreed that Bacon denied saying the floor was problematic. 6. An A.R.S. § 32-1154(A)(22) violation is, however, warranted given Respondent’s utter failure to take any steps to correct the poor exterior stucco work that was the subject of the October 30, 2014 directive during the time allowed by that directive. Sending workers out after the expiration of time in the directive does not change the analysis. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s licenses. 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, February 3, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of Respondent’s license records printed from the Registrar’s website on January 29, 2016 [2] 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.”

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