ALJDEC decisions subject to certification as final

2016A-72-ROC · Registrar of Contractors · 2016-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, July 15, 2016, at 10:00 a.m. APPEARANCES: Jamie Cole for Tri C Painting Inc. DBA (“Complainant”); Ray Jones for Majestic Concrete Creations LLC (“Respondent”); and Stephen N. Lawton, Investigator #175 for the Registrar of Contractors (“Lawton”). ADMINISTRATIVE LAW JUDGE: Linda Marie Brown _____________________________________________________________________ A Hearing was held to determine whether Respondent violated state law as alleged by Complainant 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 1. Complainant is Tri C Painting Inc. DBA Tri C Diversified Construction. located at 3727 West Irma Lane in Glendale, Arizona 85308-2120. 2. Respondent holds Arizona Contractor’s License No. 252872. 3. On January 6, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work when installing concrete countertops on a project. Complainant described alleged workmanship issues as bad seems [sic], high top and low top not aligned, and chipped corner and small crack. 4. On February 2, 2016, Respondent’s answer was received by the Registrar asserting that the chip has been repaired and that stainless steel trim piece was installed to cover up small stress crack that occurred during install. 5. The Registrar assigned Stephen N. Lawton to investigate the complaint. 6. Lawton scheduled a Jobsite Inspection for February 8, 2016. Both Complainant and Respondent were present. Lawton noted his observations on the Jobsite Inspection Notes that “chipped corner of east counter was observed and that there had been a chip at the corner on the south end of the counter. It had also been repaired.” Lawton noted that Color is not what the owner wanted, and documented his observation as, “I could not determine as to what color the stain on the counter should have been due to the fact that there is not any documentation as to what the color should have been by any party involed inclusive of the owner.” 7. Additional observations noted were (1) edges are not aligned and are off about 1 inch at the edges and (2) a couple of seam joints that exceeded the 1/16th rule. 8. On February 29, 2016, Lawton sent Respondent a written Directive from the Registrar. 9. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). . . . You are hereby directed to remedy the following violations by the appropriate means:

1. Edge of counters on east side of counters do not line up. Correct by Appropriate means, and 2. Gap at the lower counter at the northwest corner is more than 1/16th. Correct by Appropriate means.

10. The Directive contained a completion date of March 18, 2016, at 5:00 p.m.

11. Respondent attempted corrective work as provided in his testimony.

12. Respondent’s testimony referenced an email dated March 10, 2016, sent to Lawton noting that he spoke with Complainant and homeowner. Respondent’s email stated in full: Stephen, before our conversation of Wednesday morning, March 9th, I had a meeting March 8th with Pat the homeowner and Jamie of Tri-C to discuss the plans to fix the countertops I’ve built for them. Pat, the homeowner, informed me that the color was not what they wanted and the counters needed to be cast in place per the contract they had with Jamie. They are not interested in me fixing the tops as you advised, but to replace them with the cast in place counters. Jamie gave me two options. . .#1 remove the tops and replace them with cast in place countertops or #2 return their money and remove the tops I built for them. At this time I will not be doing any repairs to the tops as you requested. If by some chance they change their mind, I will need an extension past the due date of March 18th because I will have to recast the two high top that are not in compliance. (emphasis added).

Thank you.

13. On March 21, 2016, Lawton sent the parties notice that a Jobsite Inspection is scheduled on March 31, 2016, at 1:00 p.m. Respondent was not present.

14. On April 6, 2016, Lawton noted in the Compliance Jobsite Inspection Notes, “A compliance inspection was performed on this day with Complainant. Respondent had called me after the inspection. It was not Respondents fault that he was not there. Inspection had started before the perscribed time.”

15. Lawton’s findings at the March 31, 2016, Compliance Inspection were “At the time of the inspection the corrective had not been completed due to circumstances beyond control of both parties involved. Complaint will be sent to legal to schedule a hearing.” Photographs entered reflected: P1: lower counter not repaired; P2: Counter edge not lined up; P3: Counter not repaired; P4: no comment; P5: no comment; and P6: Chip in the counter at the time of the compliance inspection, was not there at the original inspection.”[1] Lawton provided testimony that reaffirmed his notes entered on April 6, 2016. 16. On April 12, 2016, the Registrar issued Respondent a Citation. That Citation contained Charge 1: “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32- 1154(A)(3).” 17. Respondent filed an answer that was received by the Registrar on April 27, 2016, restating from its answer filed on February 1, 2016, “regarding the high top, low top and seems [sic], I feel after reviewing ROC workmanship standards are all in tolerance and do not need to be replaced per Tri-C. There are no standards for pre-cast or cast in place concrete. It is my understanding that they should fall under the concrete workmanship standards and characteristics.” Additional comment was added in the April 27 letter to incorporate language from the email of March 10 sent to Lawton regarding the outcome when corrective action was attempted. 18. Both parties expressed frustration with regards to the specifics of the work that was to be performed. In review of the Proposal agreed to and accepted by the parties as a written contract on September 16, 2015, the specifications were set forth as “concrete countertops, standard straight edge, 1 ½” to 2” thick, integral color, polyurethane top coat, delivered and installed, 150 @ 55.00. Total cost: $8,250.00.” 19. In the initial Complaint, Complainant alleged work commenced on November 5, 2015. Complainant paid Respondent $4,150.00 on the same day. The project was complete on December 17, 2015. 20. Respondent testified that he has not been paid the remainder of the contract. 21. Complainant testified that they have since hired another contractor who has completed the work.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[2] 2. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] 3. “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). 4. 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.[5]

5. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.[6] 6. 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: ***** 3. Violation of any rule adopted by the registrar. ***** 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.

7. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 8. In an administrative proceeding, Complainant’s refusal to pay the contract price is not a defense to poor workmanship in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[7] although the contractor may bring a civil claim for nonpayment in a judicial forum. In an administrative licensing proceeding, if a contractor has chosen to perform construction work, his work must meet the Registrar’s and industry standards, regardless of whether he has received full payment. 9. Undisputed credible evidence contained in the Registrar’s file established Respondent did work of questionable quality at the jobsite. Respondent admitted that workmanship deficiencies existed, and asked for an extension if they wanted the work corrected. Thus, Complainant established Respondent’s work was not done 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).[8] 10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that it installed concrete countertops leaving (1) the Edge of counters on east side of counters not aligned, and (2) a gap at the lower counter at the northwest corner is more than 1/16th. 11. The preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because the Compliance Investigation Report noted that the parties encountered circumstances beyond their control. 12. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[9] An A.R.S. § 32-1154(A)(22) violation is not appropriate here given Respondent provided valid justification why ample opportunity was not afforded to take corrective action. RECOMMENDED ORDER Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license (License No. 252872) must pay to the Registrar of Contractors a civil penalty of $200.00 in certified funds.

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, August 2, 2016.

/s/ Linda Marie Brown Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Prolaw case file. [2] See A.R.S. § 32-1154(A). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Black’s Law Dictionary 1373 (10th ed. 2014). [6] See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

[7] Cf. A.R.S. § 32-1129.04 (authorizing a contractor to suspend performance or terminate a construction contract if the property owner fails to make timely payment of the amount certified and approved pursuant to A.R.S. § 32-1129.01). [8] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [9] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” Emphasis added.

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