ALJDEC decisions subject to certification as final

2016A-1154-ROC · Registrar of Contractors · 2016-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Catherine J. Cuneo,

COMPLAINANT

-v-

Rowley Enterprises, Inc.,

License Nos. 099082 and 100004,

RESPONDENT

No. 2016A-1154-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27, 2016

APPEARANCES: Catherine J. Cuneo on her own behalf; J. Kent MacKinlay, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

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FINDINGS OF FACT

On August 3, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 26, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The matter was continued and the hearing was conducted on September 27, 2016.

Respondent Rowley Enterprises, Inc. (“Rowley”) holds license numbers 099082 and 100004 issued by ROC. Merlin Rowley is Rowley’s 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 Rowley 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 Rowley’s license.

In October 2013, Rowley conducted work for Complainant Catherine J. Cuneo, which included arranging for a subcontractor to pour a concrete patio. There were five sections, one of which (at the southwest end of the back of the home) exhibited cracking. Ms. Cuneo filed a complaint with ROC and on April 16, 2014, Rowley removed and replaced the section at issue.

Soon after it was replaced, the section began to crack in the same location as the original installation. Ms. Cuneo filed a second complaint and toward the end of 2015, ROC issued a Directive to Rowley. Through that Directive, Rowley was ordered to patch any cracks 3⁄4-inch or greater. Although Rowley did not agree that there was a workmanship issue that required a repair, it was willing to do so.

The Directive provided that the Ms. Cuneo might find the repairs to be unsightly and that she could waive the repairs.

With the understanding that she would be allowed to file a new complaint within two years of April 16, 2014, through an email dated December 2, 2015, Ms. Cuneo waived the repairs ROC had ordered Rowley to make.

On April 8, 2016, Ms. Cuneo filed with ROC a complaint form, requesting that Complaint 2015-4157 be reopened. ROC designated the April 8, 2016 filing as complaint number 2016-1154.

Through a letter dated April 11, 2016, ROC informed Ms. Cuneo that her complaint was not complete and that she was required to submit a copy of the contract when she resubmitted her complaint.

On April 16, 2016, Ms. Cuneo refiled complaint number 2016-1154.

ROC Investigator Mike Crow conducted a job-site inspection on May 24, 2016, and he issued to Rowley a Directive dated June 13, 2016. Through that Directive, ROC ordered Rowley to correct by appropriate means the crack in the section of the patio that had previously been replaced. The Directive required Rowley to provide ROC with proof that it had completed the work prior to the close of business on June 28, 2016.

Rowley’s concrete subcontractor, Robert Church, returned to the site and attempted to repair the crack by grinding it open (wider) and filling it with a Sakrete product made for that purpose.

Mr. Church testified that he had contacted ROC and was told that filling the crack was an appropriate method to effect the required repair.

On July 11, 2016, Mr. Crow conducted a compliance inspection at which time he determined that Rowley did not comply with the Directive because the “color of the crack fill is not a close match and the crack filler appears to have been pushed in digitally (by fingers) and was not completed with a smooth and professional appearance.” Mr. Crow provided testimony that was consistent with these findings.

At the hearing, Mr. Rowley testified as to his opinion that the cracking was being caused by water seeping under the patio, which is a result of the patio being level with the pool deck. Mr. Church was also of that opinion, but he also testified that there could be another source of water (e.g., foundation or hose leaks).

When the patio was removed and replaced in 2014, the subcontractor poured a thicker slab and footings. Mr. Rowley testified to the effect that he thought that this would have prevented the cracking from reoccurring.

The patio slab is at the same level as the pool decking because Ms. Cuneo had insisted that the two surfaces not have any lip. Mr. Rowley testified that Rowley had warned Ms. Cuneo that this configuration had the potential to cause problems.

According to Mr. Rowley, Ms. Cuneo had been informed that a step between the two surfaces would remedy the potential problem, but Ms. Cuneo had refused that option because she was concerned that it would create a trip hazard.

Mr. Church testified that he had also warned Ms. Cuneo, but she was concerned about creating a trip-hazard.

Mr. Rowley and Mr. Church were both of the opinion that the Sakrete crack-filler had itself cracked due to moisture intrusion. They also noted however, that all concrete is subject to cracking.

ROC’s Minimum Workmanship Standards at p. 10 provides that for patios “Cracks in excess of 3/32” width or 1/8” vertical displacement or compound cracks in excess of 1/16” in width are not acceptable. Cracks of 3/16” are acceptable for sidewalks.”

ROC’s Minimum Workmanship Standards at p. 8 provides that:

Settling or heaving of soils under concrete caused by alteration of grades by owner ... [that] create excessive ponding or moisture adjacent to concrete ... patios, should not be considered the contractor’s responsibility providing the contractor has met all the conditions called for in the contract, plans, specifications, and all code requirements.

Rowley argues that based on the limitation related to alteration of the grade, it cannot be held responsible for any cracking that has occurred in Ms. Cuneo’s patio or for any cracking in the patch. This argument however does not fairly reflect the workmanship standard, which properly interpreted applies to alterations to the grade made after a patio is installed, not to the grade at the time of the installation.

ROC’s Minimum Workmanship Standards at p. 9 provides that:

Color and shade variations are inherent in all portland cement-based products. These variations may occur and are generally acceptable. These differences can be attributed to a wide variety of causes. Some causes include variable jobsite conditions and changes in aggregate source, age, degree of curing, and specified slab substrate.

This workmanship standard necessitates a finding that the difference in color between the patch and the existing patio is not a violation of the workmanship standards.

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.

“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).

“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).

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).

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.

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

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The preponderance of the evidence shows that Rowley violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner because cracks in the re-poured patio exceed the allowable width. That Ms. Cuneo insisted that the patio be configured as it was does not change this, although it is pertinent to the appropriate penalty for the violation.

Mr. Crow testified that the repaired crack was not completed in a professional manner. Rowley did not rebut this testimony and presented no witnesses who had actually seen the repairs that were made. The preponderance of the evidence shows that Rowley violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

There was no substantial evidence adduced showing that Rowley is unscrupulous, unqualified, or financially irresponsible.

Considering the violations at issue and the facts and circumstances of this matter, the imposition of a $250.00 civil penalty is appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter,

Rowley Enterprises Inc. must pay to the Registrar of Contractors in certified funds a civil penalty of $250.00.

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, October 3, 2016.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors