ALJDEC decisions subject to certification as final

2015A-4975-ROC · Registrar of Contractors · 2016-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2016, at 1:00 p.m. APPEARANCES: Thomas Jack McKenzie DBA: Thomas J. McKenzie (“Complainant”) appeared on his own behalf; R Kace Masonry LLC (“Respondent”) appeared through Carlos Alberto Acuna (“Mr. Acuna”), its qualifying party/member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about August 17, 1970, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.032610-R for residential general contracting to Complainant. 2. On or about December 20, 2013, the Registrar issued License No. CR31.28922-D for dual masonry to Respondent. 3. On or about December 3, 2015, Complainant filed a complaint with the Registrar against Respondent alleging poor workmanship in its construction of a glass block wall at a property owned by Maxine Greenberg at 4941 Mission Hill Place, Tucson, Arizona 85718 (“the project”). 4. The Registrar assigned the complaint to its Investigator, Frank Grochocki (“Investigator Grochocki”), for investigation. Investigator Grochocki performed a jobsite inspection and on March 10, 2016, issued a Directive to Respondent to repair the uneven mortar joints on the project prior to 5:00 p.m. on March 31, 2016. 5. Complainant eventually requested a hearing. On April 19, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. Respondent filed a timely written answer to the Citation, alleging that initially, the owner of the project was well satisfied with his work and that Complainant had carefully inspected the work before authorizing payment. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 7. On July 6, 2016, the Director of OAH issued an order informing the parties that because the hearing would be telephonic, they needed to submit their exhibits to OAH’s office in Phoenix at least seven days before the hearing. Neither party submitted any exhibits to OAH before the hearing. 8. A telephonic hearing was held on July 14, 2016, from the Registrar’s Tucson office. Complainant testified on his own behalf. Respondent presented Mr. Acuna’s testimony. Because Investigator Grochocki had left the Registrar, Investigator Arlo Houston (“Investigator Houston”) testified about Investigator Grochocki’s and his own investigation. 9. Complainant stated that he had submitted exhibits to the Registrar’s office in Phoenix, which were not included in OAH’s file. Complainant subsequently requested that the Registrar forward to OAH the photographs that he had submitted. On July 21, 2016, OAH received from the Registrar nine digital photographs. The Administrative Law Judge (“ALJ”) does not consider these photographs because (1) They were not available at the hearing and Respondent did not have an opportunity to object to or cross- examine Complainant about the photographs; and (2) The ALJ is not an expert in construction and, instead, relies upon the testimony and opinions of persons with expertise in construction, such as Investigator Houston, Complainant, and Mr. Acuna, rather than drawing her own conclusions about the quality of a particular construction project based on photographs. Hearing Evidence 10. Complainant testified that the job required special glass blocks that had to be fitted into a steel frame. Complainant testified that Respondent used spacers to lay the blocks, which prevented them from fitting into the steel frame. Complainant testified that he has never seen spacers used with this type of job. 11. Mr. Acuna testified that Complainant and the property owner initially accepted the job, but five days later filed the complaint with the Registrar. 12. Investigator Houston testified that he reviewed Investigator Grochocki’s notes and Directive. On July 11, 2016, Investigator Houston performed a prehearing jobsite inspection. Investigator Houston testified that the mortar joints on the project were between ¼” wide and more than ½” wide and that such disparities in grout width do not comply with the Registrar’s or industry workmanship standards. 13. Administrative notice is taken of the Registrar’s public website. On July 22, 2016, Respondent’s license was current and in good standing. The license had no history of disciplinary or administrative suspensions. Respondent’s excellent record is considered as a factor in mitigation of the recommended penalty. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[2] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[3] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 4. Complainant established cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A) (3),[6] namely A.A.C. R4-9-108,[7] based on the uneven grout widths in the project. 5. Complainant also established cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).[8] Because the grout widths were still uneven when Investigator Houston perform the prehearing jobsite inspection on July 11, 2016, Respondent failed to comply with the March 10, 2016 Directive. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. CR31.289220-D of Respondent R Kace Masonry LLC shall be suspended for a period of one business day. It is further recommended that Respondent shall pay the sum of $200.00 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)(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 five days from the date of that certification. Done this day, July 22, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(A). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] 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.” [7] 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.” [8] 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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