ALJDEC decisions subject to certification as final
2016A-1656-ROC · Registrar of Contractors · 2017-01-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sally Jo Staron
COMPLAINANT
-v-
Lamanes Inc DBA: Custom Marble Products
License No. 227164
RESPONDENT.
No. 2016A-1656-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 19, 2016 and January 24, 2017
APPEARANCES: Sally Jo Staron appeared on her own behalf; Wade Lamanes appeared for Respondent on October 19, 2016, but no one appeared for Respondent of January 24, 2017
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On August 31, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 19, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Lamanes Inc. d.b.a. Custom Marble Products (“Lamanes”) holds license number 227164 issued by ROC. Wade Douglas Lamanes is Lamanes’s qualifying party
Complainant Sally Jo Staron hired Lamanes to install a shower in her home.
On October 19, 2016, after the hearing was convened, Ms. Staron and Mr. Lamanes discussed the matter and agreed to continue the hearing. The matter was not resolved and the hearing was rescheduled for 8:30 a.m. January 24, 2017.
No representative appeared for Lamanes on January 24, 2017 and the matter was convened in its absence at about 8:50 a.m.
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 Lamanes may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (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 Lamanes’s license.
On May 17, 2016, Ms. Staron filed a complaint with ROC alleging workmanship and other deficiencies on Lamanes’s part.
In response to Ms. Staron’s complaint, ROC Investigator Mike Crow conducted a job-site inspection on June 7, 2016.
On July 11, 2017, ROC issued to Lamanes a Directive that required Lamanes to correct three conditions: the job was not completed and was nonfunctioning; the base of the shower was floating and had a large gap between it and the floor; and the drywall was not taped and finished.
The Directive required Lamanes to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. July 26, 2016.
Lamanes did not complete the work ROC ordered it to undertake. On August 2, 2016, ROC issued the Citation.
Mr. Crow testified to the effect that Lamanes had abandoned the job and that there were workmanship deficiencies as set out in his jobsite inspection notes and ROC’s Directive. With regard to the workmanship issues, Mr. Crow testified that the shower pan was not level as installed and that this was a workmanship deficiency even considering that the project had not been completed. In addition, the gap under the shower pan was too large to be appropriately covered when the tile floor is installed.
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:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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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 Lamanes abandoned the work at Ms. Staron’s house in violation of Ariz. Rev. Stat. section 32-1154(A)(1).
The preponderance of the evidence shows that Lamanes violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that it did not properly install the shower pan at Ms. Staron’s house.
The preponderance of the evidence shows that Lamanes violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.
Lamanes’s failure to appear on January 24, 2017 is considered a factor in aggravation.
Lamanes’s license should be suspended as discipline for its abandonment and workmanship violations and a civil penalty of $250.00 should be imposed for its failure to comply with ROC’s Directive.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Lamanes LLC’s license number 227164 is suspended until the Registrar of Contractors receives proof that Lamanes Inc. has complied with the Directive. If before the effective date of the final Order, the Registrar of Contractors receives proof that Lamanes Inc. has complied with the Directive, then its license is suspended for one day.
IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Lamanes 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, January 24, 2017.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors