ALJDEC decisions subject to certification as final

2015A-1993-ROC · Registrar of Contractors · 2016-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2016 APPEARANCES: Barney M. Holtzman, Esq. for Complainant; Evan Thompson, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On November 19, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 8, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Armorpoxy Concrete Coatings, LLC (“Armorpoxy”) holds license number CR34.265113-D issued by ROC.[1] 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[2] 4. Through the Citation, ROC alleges that Armorpoxy may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Armorpoxy’s license.[3] 5. Complainant John William Null entered an agreement with Armorpoxy in which Armorpoxy was to provide services including sealing Mr. Null’s driveway. 6. On May 5, 2015, Mr. Null filed a complaint with ROC alleging workmanship and other deficiencies on Armorpoxy’s part. In his complaint, Mr. Null wrote that he did not want Armorpoxy or its employees back at his house. 7. In response to Mr. Null’s complaint, ROC Investigator Frank Grochocki conducted a job-site inspection on June 22, 2015, and he issued to Armorpoxy a Directive dated July 1, 2015. 8. Mr. Grochocki determined that the front of Mr. Null’s garage and the garage door had sealer on them, which he found to be a violation of the workmanship rule. At hearing the preponderance of the evidence confirmed that there was overspray on these areas, which is a violation of the workmanship standard. 9. Through the Directive, ROC ordered Armorpoxy to remedy by appropriate means the overspray. 10. Through the Directive, ROC also ordered Armorpoxy to apply a second coat of sealer to the driveway and to complete the skim coat of the patio. These were not found by ROC to be workmanship violations, but during the inspection Armorpoxy had agreed to complete this work. 11. The parties’ attorneys exchanged letters/emails in which Armorpoxy agreed to make the required repair to the overspray area and to complete the other work ROC ordered it to do. Mr. Null was unwilling to allow Armorpoxy to do so unless it explained how it planned to correct the area with overspray. Armorpoxy took the position that it could not say in advance how the area with overspray would be remedied, but it would do what was required, including repainting the area if necessary. 12. The parties could not come to any agreement and Mr. Null would not allow Armorpoxy access to his property to complete the work ROC’s Directive ordered it to complete. 13. Mr. Null testified as to his unwillingness to allow Armorpoxy back on his property. According to Mr. Null, Armorpoxy had attempted to fix the overspray issue before the complaint was filed, but had failed to do so. 14. The area that Armorpoxy worked on is now a different color or shade than the surrounding area. Mr. Null testified to the effect that Armorpoxy told him that the overspray had been cleaned or fixed, but because only that part of the building had been washed it appeared to be a different color (i.e., that part of the building was now clean, whereas the rest was not). 15. Mr. Null testified that he had spoken to the sealant’s manufacturer about how to resolve the overspray problem and that Armorpoxy did not know how to fix the problem. Mr. Null did not provide the manufacturer’s name or any information on how it recommended the problem be resolved. 16. Mr. Null testified that if it were only the workmanship at issue, the matter might be amenable to resolution, but his view is that Armorpoxy misstated the square footage to be sealed, which resulted in an overcharge, and that Armorpoxy had not provided samples for the patio job as it had agreed to do. There is a civil lawsuit pending between the parties and Mr. Null also testified that the attorney fees from that suit are also an impediment to resolution of the workmanship issue. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The 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.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. Failure 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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. The preponderance of the evidence shows that Armorpoxy violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that it allowed sealant overspray to affect Mr. Null’s garage. 11. The preponderance of the evidence does not show that Armorpoxy violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. Null did not allow Armorpoxy access to do the required work. 12. Considering the nature of the violation and that Mr. Null did not allow Armorpoxy access to comply with ROC’s Directive, Armorpoxy show be afforded an opportunity to remedy by appropriate means the area of overspray. RECOMMENDED ORDER IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter Armorpoxy Concrete Coatings LLC’s license number CR34.265113-D is suspended for one day unless the Registrar of Contractors receives proof that Armorpoxy Concrete Coatings LLC has appropriately remedied the area of overspray, provided that John William Null must allow Armorpoxy Concrete Coatings LLC access to make the required repairs. 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 is forty days after the date of that certification.

Done this day, March 1, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows Respondent’s license number as 265113. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing is used. [2] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on September 8, 2015 or that the Complaint was filed on May 5, 2015. [3] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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