ALJDEC decisions subject to certification as final

2015A-5288-ROC · Registrar of Contractors · 2016-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2016 APPEARANCES: Dorothy J. Tobin (Complainant) appeared on her own behalf. Farco Construction, LLC (Respondent) was represented by its owner, qualifying party and authorized representative, Vaughn Farthing. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainants 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 is the owner/occupant of a residence located at 7621 S. 9th Way, Phoenix, Arizona 85042. 2. Respondent holds Arizona Contractor’s License No. 236434. 3. On October 5, 2014, Complainant filed a complaint (2014A-4210- ROC) with the Registrar alleging that Respondent had abandoned its work remodeling and adding on to her patio. 4. The Registrar assigned investigator Matt Gunstra to investigate the complaint. 5. Following his investigation, on July 8, 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.” 6. An administrative hearing was held in that matter before the undersigned on December 28, 2015 at the Office of Administrative Hearings (OAH). During that hearing, Complainant indicated that she had discovered additional instances of poor work by Respondent not included in the original complaint. 7. On December 30, 2015, Complainant attempted to file an addendum to the complaint. Due to the passage of time, the Registrar treated the addendum as a new complaint and assigned it the case number above. In this complaint, Complainant alleged, among other things, that Respondent had failed to repair large cutouts in the patio ceiling made to facilitate city access to electrical, that a large continuous crack appeared where the stucco meets the ceiling, that new cracks appeared in the bottom of the stucco of the patio columns, and that drywall work was poor at the seams. 8. After the new complaint was filed, the Registrar accepted the undersigned’s recommendation that the Respondent’s license be suspended for five days as a result of the workmanship violations in the original complaint and that Respondent pay the Registrar a civil penalty for failing to comply with the Directive. 9. On January 13, 2016, Gunstra performed a jobsite inspection on the new complaint, which Respondent did not attend. Gunstra substantiated that the repairs to the patio ceiling were still visible, that there was a new crack in the stucco of the ceiling, that there were cracks in the columns that hold up the patio ceiling and that there was a crack in the molding detail at the connection roof. 10. On January 14, 2016, Gunstra 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: 1. Drywall repairs at holes cut in patio ceiling are not done in an acceptable manner. Repairs need to be sanded and finished to match surrounding surface. 2. Patio ceiling has cracks in the drywall seams[.] 3. Repairs at patio columns not done in an acceptable manner to prevent further cracking. Patio column has crack on lower section. 4. Patio ceiling has a stucco crack in the molding detail at the connection to the existing roof[.] The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

11. The Directive contained a completion date of January 29, 2016, at 5:00 pm. During the time period specified in the complaint, Respondent attempted corrections of the above problems and on February 1, 2016, informed the Registrar that Respondent had completed its repair work. 12. On February 12, 2016, Gunstra performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had corrected item number 4 to an appropriate standard but that the corrections of items, 1, 2 and 3 failed to meet a minimum standard. Gunstra explained that Respondent’s corrections failed to blend in with the original work and that a crack remained in the bottom of the corrected column. He opined that Respondent lacked the skill set to appropriately repair its work as there were ways to repair a column that did not result in a column that reflected repeated repair. He noted that Respondent could have ground down the column but instead elected to simply apply more material to the column, resulting in a repair that did not blend in or look good. Based on his compliance inspection, Gunstra forwarded the file to the Registrar’s legal department for review. 13. On March 2, 2016, 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) for failure to comply with a directive. 14. Vaughn Farthing testified that he had repaired all items listed in the Directive to an appropriate standard. He said it was not possible to make a repaired column as smooth as one that did not undergo repairs. He indicated that Respondent utilized the same paint as was originally used on the columns to effect repairs. Farthing acknowledged that cracks in the drywall at the seam, cracks at the bottom of the pillars and cracks in the molding all required correction and were corrected after the issuance of the January 14, 2016 Directive. He said Respondent addressed the holes in the ceiling in the spring of 2015. 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. To warrant such sanctions by the Registrar, Complainant 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). 3. Undisputed credible testimony established Respondent did work of questionable quality in Respondent’s home, including, installing drywall that cracked at the seam, permitting cracks to form at the bottom of the pillars and allowing a large crack to occur in the molding. Respondent admitted such problems existed and required correction. Gunstra’s testimony that the Respondent performed substandard work in repairing holes it made in the ceiling to permit city inspection by failing to ensure the repairs blended with the existing work is also found to be credible. 4. Thus, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in 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).[1] 5. Regarding a violation of A.R.S. § 32-1154(A)(22)[2], given that Respondent attempted to repair all the items in the Directive and has already paid a civil penalty stemming from its work on the same project, a civil penalty is not warranted. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Farco Construction, LLC’s License No. 236434 for a period of two (2) days. 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, May 23, 2016.

/s/ Suzanne Marwil 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.” 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.” [2] 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.” Emphasis added.

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