ALJDEC decisions subject to certification as final

2016A-215-ROC · Registrar of Contractors · 2016-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nanci Lyn Bazzano,

MS. BAZZANO,

v.

D and M Builders Inc ,

License No: 193233

RESPONDENT.

No. 2016A-215-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 28, 2016

APPEARANCES: Nanci Lyn Bazzano (Complainant) appeared on her own behalf. D and M Builders Inc (Respondent) appeared through Amber Hoffman.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Ms. Bazzano 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

On August 18, 2015, Nanci Lyn Bazzano purchased a home from a third party which was built by Respondent.

On January 19, 2016, Ms. Bazzano filed a complaint with the Registrar of Contractors (hereinafter “ROC”) alleging that Respondent had performed substandard work throughout the home.

Respondent holds Arizona Contractor’s License No. 193233.

On February 22, 2016, ROC Inspector Christ Corlett conducted an on-site inspection regarding the complaint that included approximately 15 issues.

On March 15, 2016, Mr. Corlett issued a written directive. According to the directive, Respondent was required to correct 7 of the 15 items listed in the complaint, including a butler’s pantry and a retaining wall.

The work was required to be completed prior to 5:00 p.m. on April 1,

2016. The parties subsequently informed Mr. Corlett that all of the items were not completed.

7. On April 13, 2016, Mr. Corlett conducted a compliance inspection. At that time, Mr. Corlett observed that the butler’s pantry and retaining wall had not been corrected. In addition, Mr. Corlett believed that additional touch up was needed on some of the other repairs.

8. On April 13, 2016, Ms. Bazzano amended her Ms. Bazzano and listed

additional issues. On April 29, 2016, Mr. Corlett conducted a second on-site inspection.

9. On May 5, 2016, Mr. Corlett issued a second directive. Although Mr. Corlett concluded that no action was required on the items Ms. Bazzano added to her complaint, Mr. Corlett stated that the original directive was still in effect and that the butler’s pantry and the retaining wall still needed correction.

10. On June 21, 2016, Mr. Corlett conducted a second compliance inspection. At that time, Mr. Corlett observed that the butler’s pantry and retaining wall had not been corrected.

11. On June 22, 2016, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). A hearing was held on September 28, 2016.

12. During mid-September 2016, Mr. Corlett contacted Ms. Bazzano to find out if an inspection was needed. Ms. Bazzano informed Mr. Corlett that Respondent made corrections to the butler’s pantry. Therefore, Mr. Corlett visited the property on September 20, 2016 and concluded that Respondent corrected the butler’s pantry. However, Mr. Corlett concluded that the retaining wall had not been corrected. Mr. Corlett also noticed that there was stair step cracking in the retaining wall at the rear of the house.

13. At hearing, Ms. Bazzano testified that the only complaint item that had not been satisfactorily addressed was the retaining wall.

14. The March 15, 2016 Directive stated in pertinent part with regard to the retaining wall as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. §32-1154 (A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty as an aggravating factor should the Registrar pursue discipline of your license. You are hereby directed to remedy the following violations by the appropriate means:

Retaining walls around house are not per design, drawings are not level or plumb. Wall is starting to “hydrolic” with moisture from soil

Investigator’s Observation: The retaining wall was built for spec owner [ ]. It is considered less than a 4-ft retaining wall and therefore does not require any city permits or inspections nor must it comply with the adopted Lake Havasu City standards for retaining walls. It is unfortunate that [Respondent] chose not to get a permit and inspection so that “IF” someone wanted to add onto the wall it could be approved without requiring an engineer to certify the wall and footings are proper and would support the addition(s).

The wall(s) however must comply with the Registrar’s adopted Workmanship Standards for Licensed Contractors (WSLC). (Available at www.azroc.gov). Those standards state in part that a masonry wall must “straight, plumb and level.

Respondent should remove and replace the retaining wall (s) as necessary to achieve compliance with the WSLC.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

15. Mr. Corlett testified at hearing that the wall had to be removed and replaced in order achieve compliance with Workmanship Standards for Licensed Contractors.

16. Ms. Bazzano contended that Respondent was required to remove and replace the wall as stated in the directive. Ms. Bazzano also testified that Respondent told her that he was not going to do anything with the wall because the wall was perfect. Ms. Bazzano had admitted into evidence a proposal from Armor Fence & Masonry to correct the retaining wall. The proposal provides in relevant part, as follows:

Ex wall cannot be added to, it is non permitted wall, and is poorly built, armor is not comfortable adding or building near.

17. Don Morris, the owner of D and M Builders Inc, testified that he refused to remove and replace the wall. Mr. Morris testified that the retaining wall could be corrected by leveling out the wall and smoothing out the surface. Mr. Morris testified that he told Ms. Bazzano that he would level out the wall and smooth out the surface. However, Ms. Bazzano informed Mr. Morris that he was required to remove and place the wall per the Registrar’s directive.

18. Mr. Morris also testified that the retaining wall was wavy and he had three masons come out to the property. Mr. Morris testified that the men informed him that all of their walls have some “waviness.” According to Mr. Morris, the men informed him that all he needed to do was level off the top of the retaining wall and it would look great.

19. Amber Hoffman testified that the wall was not built for Ms. Bazzano. Ms. Hoffman stated that the home was built for the person who sold the house to Ms. Bazzano. She also contended that Respondent’s work complied with the Registrar’s workmanship standards because the retaining wall complied with the Lake Havasu City codes. Ms. Hoffman had admitted a certificate of occupancy issued by Lake Havasu City for the residence in support of Respondent’s case. Ms. Hoffman also testified that the wall could not be removed due to a boulder located on a neighboring property. However, Ms. Hoffman testified that Respondent offered to remove the wall and leave it there. However, Respondent did not offer to replace the wall after it was removed. Ms. Hoffman also contended that Ms. Bazzano signed a Buyer Pre-Closing Walk-Through waiver when she purchased the home.

CONCLUSIONS OF LAW

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.

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).

While Respondent asserted that the certificate of occupancy meant that Respondent had conformed with the Registrar’s workmanship standards, Respondent did not provide any evidence that city building codes are “virtually identical” to the Registrar’s workmanship standards, other than Ms. Hoffman’s statement that they are. Respondent did not offer any corresponding portions of Lake Havasu’s building codes that would address those aspects of the complaint cited by the Registrar. Thus, Respondent’s argument that the certificate of occupancy establishes compliance with the workmanship standard is unpersuasive.

The weight of the evidence established that the work by Respondent was not in compliance with the Registrar’s workmanship standards. Therefore, Ms. Bazzano established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The undisputed credible testimony established that Respondent did not complete the corrective work identified in the written directive from the Registrar. Respondent did not establish that it was denied access to the home to complete the corrective work during the time frame identified in the written directive. Respondent’s only contention is that when Respondent attempted to repair the wall, Ms. Bazzano insisted that Respondent remove and replace the wall as required by the directive. However, Respondent failed to establish by a preponderance of the evidence that the wall could be corrected by “leveling it out and capping the top of the wall.” Therefore, Ms. Bazzano established that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 193233 of Respondent D and M Builders Inc shall be suspended for a period of three calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 Registrar’s Order, the Registrar 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 40 days from the date of that certification.

Done this day, October 18, 2016.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors