ALJDEC decisions subject to certification as final

2014A-4210-ROC · Registrar of Contractors · 2016-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2015 APPEARANCES: Dorothy S. Tobin (Complainant) appeared on her own behalf. Farco Construction, LLC (Respondent) was represented by its owner, qualifying party and authorized representative, Vaughn Farthing. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainants 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 is the owner/occupant of a residence located at 7621 S. 9th Way, Phoenix, Arizona 85042. 2. Respondent holds Arizona Contractor’s License No. 236434. 3. On October 5, 2014, Complainant filed a complaint with the Registrar alleging that Respondent had abandoned its work remodeling and adding on to her patio. 4. The Registrar assigned investigator Matt Gunstra to investigate the complaint. 5. Gunstra telephoned Vaughn Farthing, Respondent’s qualifying party, and was informed that Respondent intended to complete the work, Gunstra then informed Farthing that if the work was completed expeditiously, the complaint would be closed. 6. Gunstra contacted the Complainant three weeks later and was advised that while Respondent had returned, work was not complete. Accordingly, Gunstra conducted an inspection, and finding several items not done, forwarded the file to the Registrar’s legal department recommending a citation for abandonment and aiding and abetting the use of unlicensed contracting. 7. Subsequently, Complainant amended her complaint to allege workmanship issues, and the Registrar’s legal department sent the matter back to Gunstra for additional investigation. 8. Gunstra sent Respondent an email containing the allegations of poor workmanship on January 30, 2015, and scheduled a jobsite inspection for February 11, 2015, which both Complainant and Respondent attended. Gunstra testified that he substantiated various workmanship issues pertaining to overspray on the windows and doors of the patio, damage to a backyard fence, problems with the drywall around an outlet plate that also did not match and cracking stucco on the patio’s pillars. He also discovered that Respondent had not had his electrical work inspected by the City of Phoenix. 9. On February 12, 2015, Pennington sent Respondent a Directive from the Registrar. The Directive 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. The switch cover plate in the kitchen has voids in the gypsum wallboard adjacent to it. 2. Surface of rear block wall fence is damaged in two locations. 3. Windows and doors at rear patio have paint overspray on them. All surfaces that are not intended to receive paint should be cleaned of paint overspray. 4. Stucco coating on patio columns is cracking. Contractor should determine cause of cracks and make necessary repairs. 5. Respondent to request and pass all inspections required by City of Phoenix.

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

10. The Directive contained a completion date of February 27, 2015, at 5:00 pm. During the time period specified in the complaint, Respondent attempted corrections of the above problems, but did not complete everything. 11. On March 9, 2015, Gunstra performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had corrected the damage to the block wall fence, but had otherwise attempted poor repairs that still did not meet standards or failed to address items. Specifically, Gunstra found that the windows and doors still had overspray on them, Respondent’s stucco repairs were very rough and unsanded, drywall around the switch plate had not been addressed and holes to provide city access to the patio’s electric work remained opened. He therefore forward the file to the Registrar’s legal department for review. 12. On July 8, 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.” 13. Vaughn Farthing testified that he had now obtained all necessary city inspections and had substantially completed work on project on March 18, 2015, when the City of Phoenix noted the project passed inspection. He believed that he had appropriately cleaned all windows and doors on the patio of overspray and that his repair work on the pillars was sufficient given that the parties had not anticipated sanding the pillars. Farthing stated that he had looked for a stainless steel switch plate and that the plastic plate used was only temporary. He said that when he returned to fix it, Complainant had already replaced the plate so he did no further work on it. This testimony did not address the drywall issues around the switch plate. 14. Complainant testified that she had to put tape around the switch plate because the drywall looked so bad and that the holes in the ceiling of the patio remained until after the city’s inspection. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established Respondent did work of questionable quality in Respondent’s home, including, leaving overspray on the windows and doors of the patio, damaging a backyard fence, problems with the drywall around an outlet plate that also did not match and cracking stucco on the patio’s pillars.

4. Thus, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in 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).[1] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[2] The Tribunal finds that Respondent was given access to Complainant’s home to correct the work. An A.R.S. § 32- 1154(A)(22) violation is appropriate here given Respondent made no effort to correct the drywall around the switch plate and plainly failed to remove all overspray from the patio’s doors and windows. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Farco Construction, LLC’s License No. 236434 for a period of five (5) days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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, January 8, 2016. /s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” [2] A.R.S. § 32-1154(A)(22) 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.” Emphasis added.

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