ALJDEC decisions subject to certification as final

2017A-3705-CHC-ROC · Registrar of Contractors · 2018-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Patrick Delgado,

COMPLAINANT,

v.

Solana Outdoor Living LLC,

License No: 309290, 282154

RESPONDENT.

No. 2017A-3705-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2018, 8:30 A.M.

APPEARANCES: Complainant appeared on his own behalf; Rick Schomburger appeared on behalf of Respondent; John Smith appeared on behalf of the Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Solana Outdoor Living LLC (Respondent), is the holder of License Numbers 309290 and 282154 issued by the Registrar of Contractors (Registrar).

2. On or about July 20, 2017, Michael Delgado (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work on the part of Respondent in connection with a swimming pool restoration project by Respondent at Complainant’s residence in Oro Valley, Arizona.

3. After the Registrar’s inspection of the job site on August 11, 2017, the Registrar issued a Directive dated August 21, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 7, 2017, as follows:

“Pool glass tile is falling off” The complainant pointed out one location with three loose tiles. The location is marked in photo #3, marked as location B.

“Grout in pool tile is falling out.” There are several locations of missing grout in the tile around the perimeter of the pool, mostly above and below the top row of water line tile.

“Previous tile repairs crooked and grout doesn’t match where previous attempt for repairs were made.” There is one location along the south side of the pool. The location is marked in photo #3, marked as location A.

4. “Decodrain is popping up in several locations”

4. The Registrar conducted a follow-up inspection on September 18, 2017, at which time the Registrar observed that all corrective work had not been performed. Consequently, the Registrar then issued a Citation to Respondent on October 27, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).

5. The Registrar conducted a pre-hearing inspection on February 9, 2018. The Registrar observed that only item 4 of the Directive had been corrected, but that it had been done so by Complainant.

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 16, 2018, at 8:30 A.M. At the hearing, Complainant appeared and testified on his own behalf; Rick Schomburger, owner of Respondent, and Jose Dicochea, employee of Respondent, appeared and testified on behalf of Respondent. John Smith, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that none of the items in the Directive had been corrected by Respondent. He testified that Item number 4 of the Directive had been corrected and he was informed by Complainant that the correction of that item was performed by Complainant.

8. As it relates to the Directive, Complainant testified that the items in the Directive still remain uncorrected, but that he engaged another contractor to correct Directive item number 4 (deco drain popped up) due to safety concerns. He indicated that that other contractor worked on some unrelated items, but that he estimated he paid the other contractor between $75 and $100 to repair the deco drain.

9. Complainant further testified that Respondent waited until September 6, 2017, one day before the Directive deadline to contact him about coming to the residence to correct the items. (Respondent’s Exhibit 1). He further testified that he agreed to the corrective work going forward the next morning, and that Rick Schomburger on behalf of Respondent stated that he would personally be present.

10. Complainant also testified that when Respondent’s workers arrived the next morning to do the corrective work, one of the workers, Jose Dicochea, stated to him that they were directed by Mr. Schomburger to wait until Mr. Schomburger arrived before starting work. Complainant stated the workers then waited in their truck and when Mr. Schomburger did not arrive by 7:00 A.M., Complainant refused to wait any longer because he had to go to work. Complainant denies that he prevented the workers from proceeding with corrective action and added that he had no motivation to prevent the work because he wanted the repairs done.

11. Rick Schomburger on behalf of Respondent testified that he sent Jose Dicochea, a crew leader and his most experienced worker, and another worker to do the corrective work before the Directive deadline. He had advised Complainant that his crew would be at the home between 6:00 A.M. and 7:00 A.M. on September 7, 2017, and that he would also be on site, but he did not specify the time he would be there or at what point during the corrective work. (Respondent’s Exhibit 1). He indicated it was not his intent to be at the site when his workers arrived, but to be at there at some point to monitor or inspect the work.

12. According to Mr. Schomburger, when Respondent did not proceed with the work that morning, he asked Complainant later that day when his crew could return. (Respondent’s Exhibit 1). Even though the Directive deadline had passed, on September 11, 2017, he again offered to have his crew return on September 14, 2017. Complainant refused indicating that the Directive deadline had passed. (Respondent’s Exhibit 1).

13. Jose Dicochea on behalf of Respondent testified that he has been employed by Respondent for 11 years. He testified further that he was assigned to go to Complainant’s residence on September 7, 2017, and arrived with another of Respondent’s workers at about 6:15 A.M. He further testified that the work would take no more than two to three hours to complete and that he had all equipment and materials with him to complete the job.

14. Mr. Dicochea also testified that when he arrived at the residence that morning, Complainant would not permit him to start the corrective work until Mr. Schomburger arrived. He then stated he went out to his truck and waited. At approximately 7:00 A.M., he indicated Complainant told him that because Mr. Schomburger had yet to arrive, that that they would not be able to do the work because Complainant needed to leave for work. Mr. Dicochea testified that he was aware that Mr. Schomburger had planned to stop by the job at some point that morning as he typically does to monitor or inspect the work.

CONCLUSIONS OF LAW

1. 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.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) in pertinent part includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

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.

5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has presented sufficient evidence to support a finding that Directive item numbers 1 - 3 still remain uncorrected by Respondent. Respondent did not dispute any of the listed items in the Directive. Therefore, Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for failing to perform all work in a professional and workmanlike manner.

7. Complainant has failed to present sufficient evidence to support a finding that Respondent failed to take appropriate corrective action relating to the Directive items without valid justification. Although corrective action was not taken, the evidence suggests that the failure to undertake action was not without valid justification.

8. The testimony of the parties is irreconcilable with respect to Respondent’s efforts to perform corrective action. The Tribunal recognizes that there is no dispute that Respondent’s workers came to Complainant’s residence to perform the corrective action before the Directive deadline. However, Complainant contends that Respondent’s workers refused to proceed with the work until Rick Schomburger arrived. Respondent contends that Complainant refused to permit the work to proceed until Rick Schomburger arrived. In that Rick Schomburger did not arrive, the corrective work therefore did not proceed.

9. The Tribunal finds the testimony of Respondent’s worker, Jose Dicochea, to be credible that he was willing and able to proceed with timely corrective work. Complainant testified that he had no motivation to prevent Respondent’s workers from proceeding with the work on the morning of September 7, 2017, before Rick Schomburger arrived because his only concern was getting the work completed. However, Respondent on September 7, 2017, asked for alternative dates from Complainant to do the corrective work and Respondent requested to come one week later on September 14, 2017. Complainant refused to provide alternative dates. While the Tribunal acknowledges that the Directive deadline had passed and Complainant was no longer obligated to permit Respondent to do the corrective work, the fact that Complainant rejected the opportunity to have a 2 - 3 hour corrective work project performed over 6 months ago to complete this project suggests that having the work completed was not Complainant’s motivating factor. Therefore, Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

10. Although Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), based on Respondent’s efforts to perform corrective work and given that the work was estimated to only take 2 - 3 hours to complete, the Tribunal believes Respondent should be afforded another opportunity to correct the deficiencies before any disciplinary action is imposed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that 10 days from the effective date of this Order, Solana Outdoor Living LLC’s, License Numbers 309290 and 282154 shall be suspended for two days unless the Registrar receives and accepts written verification that Solana Outdoor Living LLC, has corrected or caused to correct the remaining item numbers 1 - 3 listed in the Registrar’s Directive, dated August 21, 2017.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected the remaining items, the Registrar may close the Complaint in Case No. 2017A-3705-CHC-ROC.

. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, March 8, 2018.

/s/ Roger A. Geddes_____

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors