ALJDEC decisions subject to certification as final

2015A-2989-ROC · Registrar of Contractors · 2016-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 17, 2016, and July 15, 2016 (Telephonic from Registrar of Contractors’ (“Registrar’s”) Tucson office. APPEARANCES: Rosa M. Robledo (“Complainant”) appeared on her own behalf; Barcelo Builders LLC (“Respondent”) was represented by Mark F. Willimann, Esq.; also present were Spanish language interpreters Ramses Briones (May 17, 2016) and Gabriela Mercer (July 15, 2016). ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On February 16, 2012, the Registrar issued License No. KB-2.276956-D to Respondent. On or about July 13, 2015, Complainant filed a complaint with the Registrar alleging that Respondent performed poor work on a room addition at her house at 816 W. Jacinto Street, Tucson, Arizona 85705. According to the complaint, Respondent entered into the contract on April 6, 2015, started work on April 20, 2015, and last performed work on June 2, 2015. The Registrar assigned the complaint to its Investigator Frank Grochocki (“Investigator Grochocki”) for investigation. Investigator Grochocki performed a jobsite inspection on January 20, 2016. Investigator Grochocki’s inspection notes observed that Complainant stated that after Respondent allegedly abandoned the project, she had to hire others to complete the project. Investigator Grochocki noted that he could only inspect Respondent’s work that had not been changed by another contractor. Investigator Grochocki’s notes also indicate that Respondent did not attend the jobsite inspection. On January 21, 2016, Investigator Grochocki on behalf of the Registrar issued a Directive that required Respondent on or before 5:00 p.m. on February 4, 2016, to correct by appropriate means four items: (1) The west side windows that were not arched, as the plans required, and the east side windows that were not two small windows with a large window in between them, as the plans required; (2) The fireplace that was electric, not wood- burning, as the plans required; (3) The stucco that had a crack at the corner and was uneven at the reveal; and (4) The lack of proof of termite treatment. The parties agree that Respondent subsequently provided proof of termite treatment. On or about January 27, 2016, both parties contacted staff at the Registrar’s office. Complainant stated that she felt threatened by Respondent’s qualifying party/ member, Javier Barcelo (“Mr. Barcelo”), and that she had obtained an order of protection against him. Mr. Barcelo stated that although he had gone to Complainant’s house to comply with the Directive, it had not gone well and Complainant threatened to contact the police if he did not leave her property. The complaint was referred to the Registrar’s Legal Department. On February 26, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent’s attorney filed a timely written answer to the Citation, denying any cause to discipline Respondent’s license. The written answer affirmatively alleged that although the plans required arched windows and a wood-burning fireplace, Complainant had requested changes to the plans. The written answer also alleged that Respondent did not complete application of the stucco and it was finished by another. Respondent’s written answer stated that Complainant had asked that the arched windows be changed to square windows to make it easier to choose window coverings. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was started on May 17, 2016. Complainant requested that a further hearing be scheduled because she wished to retain an attorney. Respondent did not oppose the scheduling of a further hearing if the parties were required to disclose their exhibits before the further hearing. A further hearing was held on July 15, 2016. Because Investigator Grochocki had left the Registrar’s service, Senior Investigator Stephen Lawton (“Investigator Lawton”) testified about the Registrar’s investigation, standards, and procedures. Mr. Barcelo testified consistently with Respondent’s written answer. He testified that although he initially installed a wood burning fireplace, Complainant requested that it be changed to electric because it was more elegant. Mr. Barcelo testified that a wood-burning fireplace costs $400.00 and an electric fireplace costs $1,000.00, that he gave Complainant a brochure and directed him to the supplier to choose an electric fireplace, and that she paid him the price difference in cash. Complainant asked Mr. Barcelo what he had done with the rest of the $1,700.00 she had given him. Mr. Barcelo testified that the room addition had passed all the City of Tucson’s inspections and that it was 90% complete when conflicts with Complainant made it impossible for him to continue working on the job. Complainant stated that she wanted Mr. Barcelo to stop bothering her and to stop coming by her house. CONCLUSIONS OF LAW The Registrar has jurisdiction to discipline contractors’ licenses for poor workmanship in violation of A.R.S. § 32-1154(A)(3),[1] namely A.A.C. R4-9- 108.[2] However, “[t]he Registrar’s power is limited to suspending or revoking a contractor’s license, or attaching conditions to the license. Money damages may not be awarded.”[3] Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contracting law violation by a preponderance of the evidence.[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] Normally, the Registrar will not suspend a contractor’s license for poor workmanship until it has had a reasonable opportunity to correct its workmanship.[6] Respondent never had a chance to correct its workmanship after Complainant filed the complaint with the Registrar. “The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if . . . [t]he contractor's work has been subject to . . . modification . . . .”[7] Complainant did not establish that Respondent departed from the plans by installing a wood-burning fireplace without her consent. Respondent established that another contractor modified the stucco. Given the level of conflict between the parties, modification of Respondent’s work by other contractors, Complainant’s refusal to allow Respondent access to the jobsite, and the nature of the remaining issues between them, this dispute cannot be resolved by the Registrar in this administrative forum. Complainant may file a lawsuit in a judicial forum to resolve her remaining issues with Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Rosa M. Robledo’s administrative complaint against Respondent Barcelo Builders, LLC’s License No. KB-2.276956-D shall be dismissed. 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, July 18, 2016.

/s/ Diane Mihalsky 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.” [2] 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.” [3] J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984) (quoted in Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 440, 803 P.2d 430, 433 (App. 1990)). [4] 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). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] See A.R.S. § 32-1154(A)(22), which 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.” [7] A.R.S. § 32-1155(C)(2).

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