ALJDEC decisions subject to certification as final
2016A-3735-ROC · Registrar of Contractors · 2017-02-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Karen Holub,
COMPLAINANT,
v.
Leone Builders LLC ,
License No: 304633
RESPONDENT.
No. 2016A-3735-THE REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 2, 2017
APPEARANCES: Karen Holub appeared on behalf of herself. James Sparks, Esq. appeared on behalf of Leone Builders LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
On December 12, 2016, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 2, 2017, at the Office of Administrative Hearings.
Respondent Leone Builders LLC, (hereinafter “Leone Builders”), holds license number 304633 issued by the Registrar
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Leone Builders may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(8) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Leone Builder’s license.
In August of 2016, Complainant Karen Holub entered a contract with Leone Builders in which Leone Builders agreed to perform stucco and paint repair work at Ms. Holub’s residence located in Scottsdale, Arizona.
Leone Builders performed the work.
In September of 2016, Ms. Holub informed Leone Builders that she was unsatisfied with the quality of the stucco and paint work. Ms. Holub also alleged that Leone Builders damaged her patio and driveway area by power washing the area.
In September of 2016, Leon Builders sent three different workers to Ms. Holub’s home to repair the patio and driveway. The companies offered to remedy the work by performing acid washing. However, Ms. Holub refused to allow the workers to acid wash her property because she did not like the look of acid wash. Ms. Holub also believed that acid washing would weaken the concrete. Ms. Holub also expressed that she did not want the concrete sealed because she believed that there would be ongoing maintenance costs. Ms. Holub informed Leon Builders that she would explore other options with regard to how to repair the patio and driveway.
On or about September 23, 2016, Ms. Holub filed a complaint with the Registrar alleging workmanship and other deficiencies on Leone Builders’ part.
Ms. Holub attached to the complaint that she filed with the Registrar a contract dated August 15, 2016 between Ms. Holub and Leone Builders. The August 15, 2016 contract did not advise Ms. Holub that she had the right to file a complaint with the Registrar against Leone Builders for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address.
On October 13, 2016, the Registrar Investigator Randy Cason conducted a job-site inspection in response to Ms. Holub’s complaint.
The Registrar issued to Leone Builders a Directive dated October 24, 2016 in which it order Leone Builders to make certain repairs. The October 24, 2016 Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Poor stucco/paint workmanship”
The respondent added stucco one coat wall system over existing exterior brick walls; however the respondent did not extend the plumbing (water main, hose bibs and gas lines) or electrical exterior outlets thus creating pockets in the finish stucco wall. Also the exterior stucco finish along the back wall at top, around the utility boxes in back, around vent above back patio utility door, back yard exterior door jamb and Stucco above front window next to driveway is not uniformed.
The exterior paint is not uniformed all around the exterior of the house. The finish paint around the exterior window frames is uneven/not uniformed.
Complaint Item 2: “Acid damaged patio and driveway areas”
The respondent had power washed and acid washed the concrete surfaces causing the top finish layer to come off exposing the aggregate rock in the concrete. This has left discoloration and streaking
Complaint Item 3: “Stucco/paint damaged patio/driveway and other property and landscape”
The respondent had power washed the front courtyard area to remove the excess stucco and paint, the power wash had removed part of the top layer of the colored concrete finish causing light areas.
Stucco splatter marks on the back yards colored concrete walkways.
Dust/debris from the work in the front of the house had fallen on to part
of the front yards rock ground cover causing discoloration
Stucco splatter marks on the exterior windows around the house.
After the Directive was issued, Leone Builders made some repairs. Leone Builders proposed to repair Ms. Holub’s patio and drive way area by acid washing and sealing the concrete. However, Ms. Holub refused to allow Leone Builders to make the repairs. Leone Builders inquired with Ms. Holub regarding how she wanted Leone Builders to repair the patio and driveway, but she did not respond.
Although the deadline under the directive to make repairs was November 8, 2016, the deadline was extended to November 21, 2016.
Leone Builders was unable to complete any repairs from November 19, 2016 up to November 23, 2016 because it was raining.
After the deadline expired, Ms. Holub would not allow Leone Builders on her property to make any additional repairs. Ms. Holub decided that she would wait until the hearing.
On December 1, 2016, the Registrar investigator Randy Cason conducted a compliance jobsite inspection. Randy Cason concluded that Leone Builders was not in compliance with the Directive.
At hearing, Ms. Holub confirmed that she would not allow Leone Builders to repair the work by acid washing and sealing the concrete. Ms. Holub testified that the only way to correct the work would be to install a new driveway.
19. Ms. Holub contended that Leone Builders damaged her driveway by causing discoloration. However, Ms. Holub submitted insufficient evidence to establish that the discoloration was caused by Leone Builders. Ms. Holub had admitted into evidence a photo of her driveway before it was pressure washed and the driveway was discolored. Ms. Holub also contended that Leone Builders caused discoloration to her rocks.
20. Leone Builder’s did not dispute that Ms. Holub is entitled to professional work. However, Leone Builders sent three different workers to address the problems and she refused to allow any of them to repair the work. Ms. Holub would not accept any repair other than a new driveway.
21. Leone Builders contended that it was unable to complete the paint and stucco touch up work due to the rain. Leone Builders denied causing discoloration to Ms. Holub’s rocks or the splatter marks on the exterior windows of Ms. Holub’s home.
Nontheless, Leone Builders contended that any cleaning to the windows or rocks would be performed after the home was painted and the stucco work was completed.
22. The evidence at hearing showed that Ms. Holub refused to allow Leone Builders to repair the work by the means that Leone believed was appropriate and as a result, Leone was unable to repair all of the work.
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.
9. The preponderance of the evidence does not show that Leonne Builders violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Ms. Holub did not allow Leonne Builders to correct the work by the most appropriate means. Leone Builders believed that acid washing and sealing the concrete was the most appropriate means to remedy the work and Ms. Holub would not allow Leonne Builders to perform the work. Therefore, Respondent established that Complainant did not allow reasonable access for Respondent to comply with the Directive.
10. The preponderance of the evidence established that Complainant denied Respondent reasonable access to her residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
11. Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1158 because Respondent’s August 15, 2016 contract did not advise Complainant that she had the right to file a complaint with the Registrar against Respondent for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address. Although Respondent should make sure that its contract forms comply with the Registrar’s statutes, Respondent’s violations were technical and did not cause Complainant to suffer any identifiable damages.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of A.R.S. § 32-1158(B). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s licenses be suspended for three 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 is forty days after the date of that certification.
Done this day, February 23, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors