ALJDEC decisions subject to certification as final

2014A-5124-ROC · Registrar of Contractors · 2015-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2015, at 8:00 a.m. APPEARANCES: Marcella Bernadette Aguilar (“Complainant”) appeared on her own behalf; Escobar Lath and Plastering Inc. (“Respondent”) appeared through Norberto Arre Escobar, Jr., its Qualifying Party and Officer (“Mr. Escobar”). ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedure On or about October 29, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR36.223176-D to Respondent. On or about December 22, 2014, Complainant filed a Complaint with the Registrar that alleged, among other things, that Respondent had performed poor work on the stucco that it had applied to Complainant’s house at 350 S. Corte Tortuga Vista, Tucson, Arizona 85745. The Complaint was assigned to the Registrar’s Investigator, Frank Grochocki (“Investigator Grochocki”), for investigation. Investigator Grochocki performed an onsite inspection and on March 10, 2015, on behalf of the Registrar, issued a Directive that required Respondent to perform certain corrective actions before 5:00 p.m. on March 25, 2015, in relevant part as follows: Jobsite inspection found rough, uneven texture, thickness not uniform at electrical boxes, contractor to correct by appropriate means.

After Respondent failed to resolve the Complaint to Complainant’s satisfaction, she requested a hearing. The Registrar issued a Citation charging possible cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-109, and A.R.S. § 32-1154(A)(22). Respondent filed a timely written answer to the Citation, denying that its work was poor and stating that the reason that the stucco finish was rough was that Complainant’s boyfriend and co-owner of the house, Abel Soto (“Mr. Soto”), had requested a stronger finish than the “marble sand” finish that Complainant had originally selected. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on November 17, 2015, via videoconference from the Registrar’s office in Tucson with the Administrative Law Judge (“ALJ”) conducting the hearing from the Phoenix office of OAH. Investigator Grochocki, Complainant, Mr. Soto, and Mr. Escobar all testified. Hearing Evidence The parties did not have a written contract that specified the scope of work or stucco finish. Instead, the only writing that memorialized the agreement was Respondent’s Invoice No. 1 that showed the total cost of the job would be $16,200.00.[1] Complainant and Mr. Soto testified that they had chosen a smooth stucco finish that used silica but that Respondent applied a rough finish that was unsightly. Mr. Escobar testified that Mr. Soto had requested a stronger stucco finish that the “marble sand” finish that Complainant and Mr. Soto originally selected because he wanted something that would bind more strongly to the underlying surface. Mr. Escobar testified that Respondent proposed to use a “river sand” finish and that Mr. Soto agreed, even though Mr. Escobar warned Mr. Soto that he should stick with the “marble sand” finish. Mr. Soto denied ever agreeing that Respondent could install any other finish than the “marble sand” smooth finish that he and Complainant had originally selected. Investigator Grochocki testified that he did not perform a prehearing inspection because Complainant informed him that Respondent had not performed any work after the March 10, 2015 Directive was issued. Mr. Escobar agreed that Respondent had not performed any repairs to comply with the March 10, 2015 Directive. Mr. Escobar explained that every time Respondent was at the house, Complainant and Mr. Soto just wanted to fight and argue and so he informed them that Respondent would wait until after the hearing to perform any repairs. Investigator Grochocki testified that that although the thickness of the stucco was not uniform at the electrical boxes, the stucco over the entire house had rough, uneven texture caused by excessively deep and uneven trowel marks. Mr. Escobar testified that the nature of the “river sand” finish was that it was rough and uneven. Mr. Escobar testified that in his opinion, which was shared by other contractors to whom he had spoken, the only items that required correction at the job were areas around the light boxes. Investigator Grochocki testified that the texture of the stucco should be more uniform over the entire house, regardless of the specific type of finish. Inspector Grochocki opined that overall, the stucco that Respondent had applied to the house did not comply with the Registrar’s or industry standards. Mr. Soto and Complainant testified that in June 2015, after Respondent failed to repair the stucco, they hired another stucco contractor to re- stucco the house. Administrative notice is taken of the Registrar’s public website, which shows that on November 13, 2015, Respondent’s license was current and in good standing.[2] This appears to be the only complaint pending against Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether cause exists to discipline Respondent’s license under the charged subsections of A.R.S. § 32-1154(A). 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] 3. The Registrar’s Citation did not allege that Respondent departed from specifications by installing a “river sand” stucco finish rather than a “marble sand” stucco finish, thereby furnishing cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(2).[7] Complainant did not request that the Citation be amended. The ALJ cannot find statutory violations that were not charged in the Registrar’s Citation or any amendments thereto.[8] 4. Investigator Grochocki is an independent, disinterested expert witness. Investigator Grochocki’s testimony was credible that at his jobsite inspection, he observed the texture of the stucco over the entire house to not be uniform and that applicable standards required greater uniformity. Therefore, Complainant established that Respondent did not meet the Registrar’s or industry standards in its application of the stucco, furnishing cause for the Registrar to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[9] specifically, A.A.C. R4-9-108.[10] 5. Complainant also established that Respondent failed to comply with the Registrar’s March 10, 2015 Directive, furnishing additional cause for the Registrar to discipline its license under A.R.S. § 32- 1154(A)(22).[11] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order, Respondent Escobar Lath and Plastering Inc.’s License No. CR36.223176-D shall be suspended for three business days. 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(E).

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 final Order, the Registrar shall 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)(6), 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 five days from the date of that certification. Done this day, November 17, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Registrar’s electronic file, Complaint Submittal1.pdf at 3. [2] The public website indicates that Respondent’s license was administratively suspended for non-renewal for one day on November 1, 2012, was suspended as discipline until Respondent complied with the Registrar’s final order in another case between June 8, 2012, and October 30, 2012, was administratively suspended for non-renewal between November 1, 2010, and March 4, 2011, was administratively suspended for non-renewal between November 1, 2008, and November 7, 2008, and was administratively suspended for lack of bond between November 13, 2009, and November 23, 2009. [3] 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). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] 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.” [8] See A.R.S. § 41-1092.05(D) (requiring the referring agency to provide to the regulated party a notice that includes “[a] reference to the particular sections of the statutes and rules involved”). [9] 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.” [10] 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.” [11] 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.”

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