ALJDEC decisions subject to certification as final

2015A-1839-ROC · Registrar of Contractors · 2016-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 2016 APPEARANCES: Patricia Lee Bayne appeared on her own behalf. Respondent Boby Warren Smith dba, B W Smith and Associates Realty and Development represented his own interests. 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 Patricia Lee Bayne is the owner/occupant of a residence located at 3208 Sheik Drive, Lake Havasu, Arizona 86404. 2. Respondent holds Arizona Contractor’s License 099499. That license was suspended for lack of renewal on November 1, 2014, prior to Respondent undertaking his work at Complainant’s home on December 14, 2014.[1] Respondent’s license expired on October 1, 2015. 3. On April 27, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when constructing a cedar picket fence in her backyard. 4. The Registrar assigned investigator Cliff Corlett to investigate the complaint. Corlett testified that he arranged to perform an inspection on May 15, 2015, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Corlett indicated that at the time of an inspection, he substantiated Complainant’s allegations regarding the poor construction of the fence and noted that the wrong fence posts had been utilized. He noted that the fence needed to be removed and replaced. 5. On May 25, 2015, Corlett 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:

Respondent’s license was suspended for non-renewal at the time of this contract and construction project were performed, there is further information regarding this situation in the last two bold type paragraphs of this directive.

1. In this Investigators opinion this fence needs to be removed and replace with new material and by someone with knowledge and experience constructing cedar picket fences. 2. While there is no “code” for wood fence construction there are practices common to the industry regarding vertical post spacing, horizontal support rail spacing and distances from the top and or bottom of a 6-foot high cedar picket fence. The preferred method has three equally spaced horizontal support rails but two rails is acceptable, however the top rail on a two rail fence is generally within 12-inches of the top of the fence and the bottom rail within 12 to 18-inches of the ground. The Respondent has the top rails of this fence varying from 24 to 16 inches from the top of the slats, the cedar slats are warping at an accelerated rate as they are not properly supported. 3. The Respondent has used Doug Fir as the horizontal support rails and they are improperly cut, fit and or nailed. Nails have been driven through the support rails and bent over on several rails. Many of the rails are split and or improperly supported by some scabbed on lumber. The support rails do not even properly align in places. 4. Because the cedar fence pickets were nailed to the support rails at the improper heights, the pickets cannot even be reused as there will be improper, unsightly nail holes in every slat. 5. The Respondent also appears to be in violation of A.R.S. § 32- 1158-B, required minimum elements of a contract over $1,000.00 (written). 6. The Respondent appears to be in violation of A.R.S. § 32-1154-A, (3) Poor Workmanship, (8), Failure to complete a construction project for the stated price. ($1,400.00), (14) Contracting under a name other than how it appears on the license, and (17) contracting on a suspended license (non-renewal).

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 June 10, 2015. Due to the suspended status of the Respondent’s license, the Directive indicated that he could not perform corrective work, but could comply with the Directive “only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.” 7. On June 25, 2015, Corlett performed a compliance inspection at Complainant’s home. He discovered that no licensed contractor had performed corrective work nor had the parties reached a financial settlement of the matter. He therefore forwarded the matter to the Registrar’s legal department for review. 8. On July 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. Complainant said the fence came down during a storm and her friends had helped her to stack the pieces. She explained she agreed to pay Respondent $1,400.00 to build a fence and that immediately after it was constructed she and her sister raised concerns with Respondent. She said he was only willing to fix minor issues and became rude, leading her to ask him to leave her home. 10. Respondent admitted that the fence was poor quality work and blamed a gentleman he had hired to do the work. He acknowledged that he had not supervised the gentleman well. He explained that he was 72 years old, had COPD and two heart attacks and was not in a position to build the fence himself. Respondent indicated he had offered Respondent a financial settlement of the matter, but she refused and had stopped some of the checks she used to pay him for the fence. He maintained that he was willing to fix the fence. 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. Respondent’s suspended and expired license does not deprive Complainant of her right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D) 3. 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). 4. Undisputed credible testimony established Respondent allowed a gentleman under his supervision to construct a fence of poor quality for Complainant. Thus, Complainant established Respondent’s work on the fence as specified in the Directive 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. An A.R.S. § 32-1154(A)(22) violation is, warranted given that Respondent failed to engage a licensed contractor to reconstruct the fence during the time sent forth in the Directive and also failed to reach a financial settlement with the Complainant. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 099499. 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 2, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrate Notice is taken of Respondent’s licensing history, viewed on the Registrar’s website on January 21, 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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