ALJDEC decisions subject to certification as final

2017A-3793-CHC-ROC · Registrar of Contractors · 2017-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Victoria L Davis,

COMPLAINANT,

v.

Silva Diversified Construction Co LLC ,

License No. KB-2.302757-D,

RESPONDENT.

No. 2017A-3793-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 7, 2017, at 8:30 a.m.

APPEARANCES: Victoria L. Davis (“Complainant”) appeared on her own behalf; Silva Diversified Construction Co. LLC (“Respondent”) appeared through its employee, Oscar Silva.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about January 25, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.302757-D for dual residential and small commercial contracting to Respondent. Sandra M. Silva is the qualifying party/member and only person listed on the license.

On or about July 25, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had failed to provide a contract, had failed to pull a permit, and had performed poor work on its contract to enclose the existing patio with a ceiling fan at Complainant’s house at 8843 N. Mesquite Bluffs Pl., Tucson, Arizona 85742. According to the complaint, Complainant had paid Respondent $2,000.00 for the work, but the amount of the contract was left blank.

The Registrar assigned the complaint to its Investigator, John Smith, for investigation. On or about August 17, 2017, Investigator Smith performed a jobsite inspection.

On August 21, 2017, Investigator Smith issued a Directive, which provided in relevant part as follows:

Permit required for this project. Permit needs to be obtained by property owner, or property owner’s authorized agent. If the local jurisdiction finds corrective issues relating to the respondents work, the respondent will be required to correct those issues by appropriate means. Approved inspection results to be sent to the ROC Investigator.

No corrective work is to take place prior to the permit being obtained.

You are hereby directed to remedy the following violations by the appropriate means:

“Homeowner purchased ceiling fan installed on patio, wiring outside & could not be used unless porch light was on.”

“Contractor did not connect framing to house. Screen would not go all the way to the side of the house leaving gap.”

“Area between 2x2 frame & chair railing would leave gap when screen installed.”

“Homeowner purchased screen door installed 3-1/2” too high...”

“Door installed with mismatched pieces of wood to make it fit.”

“Doesn’t lock properly.”

“Contractor had not plan to do finish work on brickwork...” The pavers are currently incomplete.

The deadline in the Directive for Respondent to correct its work was on or before 5:00 p.m. on September 11, 2017.

Respondent did not comply with the August 21, 2017 Directive. Investigator Smith sent the complaint to the Registrar’s Legal Department for the issuance of a Citation.

On January 25, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(9), A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(22).

Respondent filed a written answer to the Citation, denying any statutory violations and affirmatively alleging that Complainant had pulled Respondent from the job before it could finish its work.

The Registrar referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A telephonic evidentiary hearing was held at the Registrar’s Tucson office on December 7, 2017. Complainant testified and presented the testimony of her son, Matthew Davis. Respondent presented the testimony of its employee, Oscar Silva, who is Ms. Silva’s brother. Investigator Smith testified.

Additional Hearing Evidence

Complainant testified that there was no written contract for the project. Respondent did not produce a contract.

Investigator Smith testified that he confirmed with the local building authority that a permit was required to enclose Complainant’s patio and install a ceiling fan because the project involved adding footers, patio pavers, and electrical. Investigator Smith’s jobsite inspection notes state that he informed the parties that IRC R105.1 makes property owners responsible for applying for and obtaining a permit.

Complainant testified that she did not know that a permit would be needed for the patio enclosure project until Investigator Smith told her at the initial jobsite inspection.

Mr. Silva testified that he always tells property owners if a permit is required and that he told Complainant that a permit was required for her project. Mr. Silva testified that Complainant chose to proceed without a permit to save money and Respondent started the project after Complainant elected not to get a permit.

Complainant testified that she had not applied for a permit because she needed Respondent to provide a plan for the project. Mr. Silva testified that he had emailed the contact information for Respondent’s designer to Complainant. Complainant acknowledged that she had received the designer’s contact information.

Investigator Smith testified that at the initial jobsite inspection, Respondent’s qualifying party/member Ms. Silva stated that Ricardo Hernandez, an unlicensed electrician, had acted as Respondent’s electrical contractor. Although Ms. Silva was present at the hearing, she did not dispute Investigator Smith’s testimony.

Investigator Smith testified that Respondent’s license application stated that it did not need to have Workers’ Compensation Insurance because it did not have any employees. Investigator Smith testified that he told Ms. Silva that Respondent needed Workers’ Compensation Insurance since it employed Mr. Silva.

Complainant testified that she asked Respondent to provide a plan for repairs after Inspector Smith issued the Directive, but that Mr. Silva did not provide such a plan. Mr. Davis testified that he asked Mr. Silva how Respondent intended to remedy the deficiencies noted on the Directive, and Mr. Silva stated he had no idea how Respondent would finish the project, but that if Complainant was unhappy, she could keep the rest of the money. Mr. Davis testified that before the initial jobsite inspection, Mr. Silva kept saying plans did not matter because the job would not be inspected.

Investigator Smith performed a compliance inspection on September 20, 2017, and a prehearing inspection on December 5, 2017. Respondent did not perform any repairs to comply with the Directive.

Mr. Silva testified that at one time, he held a general contractor’s license. Mr. Silva testified that if Complainant had allowed Respondent to perform repairs and complete the project, Complainant would have been happy and the job would have been satisfactorily completed.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. On this date, Respondent’s license is current and in good standing. The Registrar has never disciplined Respondent’s license and this complaint appears to be the only one pending against the license.

The Registrar’s public website also shows that on March 8, 1994, the Registrar issued License No. B.101250-R for general residential contracting to Sundry Builders Inc. Although the license was qualifying party exempt, Mr. Silva was listed as former qualifying party. License No. B.101250-R was revoked on September 21, 2011.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established that Respondent started the patio enclosure project when it knew that a necessary permit had not been obtained. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

Complainant established that Respondent used unlicensed electrical contractor Ricardo Hernandez on the project. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(9).

Complainant established that Respondent undertook a job that cost more than $1,000.00 without providing any written contract. Therefore, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B).

Complainant established that Respondent’s work on Item Nos. 1-7 on the August 21, 2017 Directive did not comply with the Registrar’s or industry standards. Complainant thereby established potential cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, contractors must be afforded an opportunity to repair their workmanship before the Registrar suspends or revokes their licenses as a result of that work. Although Respondent could not perform repairs until Complainant obtained a permit, Complainant testified that she did not attempt to obtain a permit because Respondent did not provide a plan for the project or a satisfactory plan to comply with the Directive. There is no evidence in this record that the local building authority required any more than a crude drawing for a permit and, even if it did, obtaining the drawing was Complainant’s responsibility.

In addition, by virtue of having a contractor’s license, Respondent is presumed to have the expertise to perform appropriate repairs. Complainant does not have the right to approve intended repairs as a condition of allowing access. In addition, Complainant’s testimony that she did not know a permit was required until Investigator Smith told her so at the jobsite inspection is rendered less credible by the complaint she filed with the Registrar three weeks earlier that Respondent had failed to pull a permit for the project.

Therefore, Respondent established that Complainant refused to provide reasonable access to attempt to comply with the August 21, 2017 Directive and Complainant failed to establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Respondent Silva Diversified Construction Co. LLC’s License No. KB-2.302757-D shall be suspended for ten business days.

It is further recommended that after the ten business day-suspension, Respondent’s contractor’s license shall remain suspended until it provides written proof that is satisfactory to the Registrar that it has brought its business practices into compliance with A.R.S. § 32-1158(B) by (a) Making contracts with property owners for all projects whose cost exceeds $1,000.00 in writing; and (b) Making such form contracts include all nine elements required by A.R.S. § 32-1158(B).

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 five days from the date of that certification.

Done this day, December 20, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors