ALJDEC decisions subject to certification as final

2016A-1040-ROC · Registrar of Contractors · 2016-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Heather Adams,

COMPLAINANT,

v.

Stephen Bart Benge ,

DBA: Stephen Bart Benge Construction,

License No: 256398

RESPONDENT.

No. 2016A-1040-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 3, 2016

APPEARANCES: Heather Adams, Complainant, Babette DeLeonard, Russell Schwizter witnesses for the Complainant. Jeff Brei, Esq., counsel for

the Respondent. Stephen B. Barge, Respondent and Qualifying Party. Arlo

Houston, Inspector, Arizona Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On September 12, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 3, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. The matter was conducted telephonically.’

Respondent Stephen Bart Benge DBA: Stephen Bart Benge Construction holds license number 256398 issued by ROC. Stephen Bart Benge [Benge] is the qualifying party. ’The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, ROC alleges that Stephen Bart Benge may have violated Ariz. Rev. Stat. Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

The Citation shows that if the Administrative Law Judge finds that there has been a violation, ROC may suspend or revoke Stephen Bart Benge’s license.

Complainant Heather Adams owns a residence for which Stephen Bart Benge was the general contractor. Adams filed a Complaint with ROC alleging six deficiencies on Stephen Bart Benge’s part and alleged poor workmanship, abandonment and a money dispute.

A timely Answer was filed by the Respondent.

In response to that complaint, ROC Investigator Arlo Houston conducted a job-site inspection on May 17, 2016. Stephen Bart Benge and the Complainant were present at the job-site inspection.

At the jobsite inspection, Mr. Houston advises that the Complainant confirmed she had hired an allegedly unlicensed contractor – known to her only as “Beto” – to perform work already done by the Respondent - including tile work and cabinetry work [matters listed herein below as repair issues identified in the ROC directive]. Another individual, Russel Schwizter, performed work on the Complainant’s garage door entry – a door which the Respondent had also worked on. Mr. Schwizter testified at hearing that although he previously held a contractor’s license in Arizona, he was retired and no longer held an ROC license.

Mr. Houston issued a Directive dated June 20, 2016, in which ROC directed Stephen Bart Benge to remedy by appropriate means.

Sanded grout used, which resulted in grout dissipating through seams. Consequentially resulting in no grout between tiles.” Complete grout work for tiles (except for hall bathroom which has been modified by others).

“Random areas where tiles were installed have hollow sound.”

“Joab Butler returned to replace some tiles after hollow sounding tiles and “toe kickers" were discovered. Many hollow sounding tiles and toe kickers remain.”

“Kitchen cabinets and sink installed with drywall screws

“Random and numerous drill holes in exposed portions of cabinetry.”

“Veneer on cabinetry split and peeling.” Left side of pantry cabinet veneer split towards the top.

“Splits in wood of cabinetry.” Split in lower left stile of microwave cabinet.

“Veneer on back of kitchen island cabinetry damaged.” Exposed trim nail heads which need putty. Veneer not securely attached.

“Cabinet doors and drawers not closing correctly.”

“Work never started for new fireplace covering and installation of mantle.” Complete per contract.

Ten doors unevenly hung. Adjust doors as necessary.

The Directive, by its terms, required Stephen Bart Benge to remedy the violations no later than July 13, 2016.

Mr. Houston’s testimony showed that Stephen Bart Benge was co-operative after receiving the Citation in that he expressed his willingness to make the repairs he was ordered to complete.

As to items 1, 2 and 3 [which address floor-tile grout issues], Respondent appeared at the Complainant’s home on July 3, 2016. Work was started, but was not completed because Complainant ran out of tile and grout. Complainant was responsible for providing materials for the job. Because Complainant refused to supply the necessary grout and tile, Respondent himself purchased the additional tile and grout and proceeded to Complainant’s home on July 10, 2016 and completed the tile work.

Regarding items 4, 5, 6, 7, 8 and 9, Respondent completed all cabinet work specified in the Directive on July 5, 2016.

Regarding item 10: on July 10, 2016, the undisputed testimony at hearing was that the Complainant and the Respondent concur, Complainant told the Respondent that did not purchase materials for the fireplace because she no longer desired Respondent to build a fireplace mantle or apply a veneer for the fireplace.

Regarding item 11 of the Directive pertaining to the hanging of doors: Respondent re-hung all doors to correct any variances from standards.

A request to hold open the record in this matter for 5 days was Ordered to enable the parties time to locate and to file records, receipts or other documents that disclose the cost, the work done and the identity of the alleged unlicensed contractor that, post-complaint, undertook to do repair and other work on the Respondent’s contracted work services. No documents were filed while the record was held open.

Mr. Houston testified at hearing that based upon his observations and experience, the Respondent made a “good-faith effort to comply with the Directive. The work was done in a timely manner.

No evidence or argument was provided regarding the “money dispute” alleged in the Complaint.

CONCLUSIONS OF LAW

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.

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

The preponderance of the evidence does not show that Stephen Bart Benge is unscrupulous, unqualified, or financially irresponsible.

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:

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3. Violation of any rule adopted by the registrar.

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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. (emphasis added.)

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

Ariz. Rev. Stat. section 32-1155(C) provides that “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 “. . .The contractor's work has been subject to neglect, modification or abnormal use.” [emphasis added].

The preponderance of the evidence does not show that there is a workmanship violation related to items 1 through and including item 9 of the Complaint.

Regarding item 10, the Complainant withdrew this item from the scope of work.

The preponderance of evidence does not show a workmanship violation related to item 11 of the Complaint.

No evidence was provided regarding the “money dispute” alleged in the Complaint.

The preponderance of evidence demonstrates that a good faith and actual effort was made to timely complete the repairs ordered by the ROC Directive. The Respondent did not “[Fail] to take appropriate corrective action to comply...within a reasonable period of time after receiving a written directive from the registrar.”

The Complainant failed to prove by a preponderance of the evidence that the Respondent abandoned the work contracted for by the Complainant.

Because the Complainant hired another contractor who then modified the work that was performed by the Respondent, there isn’t evidence of record to support the Citation’s allegation that the Respondent failed“...to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.”

CONCLUSION

Inasmuch as there is no finding that Respondent Stephen Bart Benge abandoned this job before completion, that there is no evidence of a money dispute, that the Respondent did not fail “...to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards and that repairs ordered by the ROC Directive were timely made and completed, this Complaint should be dismissed.

RECOMMENDED ORDER

IT IS RECOMMENDED that this Complaint be dismissed and this case be closed.

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, November 21, 2016.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Done this day, November 21, 2016.

/s/ Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors