ALJDEC decisions subject to certification as final
2017A-5277-CHC-ROC · Registrar of Contractors · 2018-04-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Travis Scott Ackermann,
COMPLAINANT,
v.
Anything Masonry Inc,
License No: 273626
RESPONDENT.
No. 2017A-5277-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 14, 2018, 1:00 P.M.
APPEARANCES: Complainant Travis Ackerman appeared on his own behalf; Kelly Johnson, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Anything Masonry, Inc. (Respondent), is the holder of License Number 273626 issued by the Registrar of Contractors (Registrar).
2. On or about October 18, 2017, Travis Ackerman (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with installation of a pony and retaining wall by Respondent at Complainants’ residence in Buckeye, Arizona.
3. Upon completion of an inspection performed by the Registrar on November 6, 2017, the Registrar issued a Directive, dated November 28, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 15, 2017, as follows
Retaining wall footing not poured at steps.
Mortar is falling out of mortar joints.
Steps unlevel at retaining wall area.
Fence columns not equal in height.
Mortar wash coming off in areas.
4. When the Registrar performed a second inspection on January 5, 2018, and observed that some or all of the Directive items had not been corrected by the Directive deadline, the Registrar then issued a Citation to Respondent, dated January 8, 2018, 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 without valid justification).
5. 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 March 14, 2018, at 1:00 P.M. Complainant Travis Ackerman testified on his own behalf and presented the testimony of Nate Kinzie. Kelly Johnson, owner of Respondent, testified on behalf of Respondent. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 13.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that with respect to all of the items listed in the Directive, none had been completed by Respondent.
7. Complainant Travis Ackerman testified as to each of the Directive items and that Respondent made no effort to correct any of those items despite various promises to do so. He also testified Respondent was aware that a driveway entry gate was to be installed between the two columns of the wall.
8. Nate Kinzie testified on behalf of Complainant that he observed that Respondent did not place vertical rebar in the posts, that mortar and paint are falling off and disintegrating, that there are many more cracks in the walls, and the installed stairs are starting to sink.
9. Kelly Johnson, owner of Respondent, testified on behalf of Respondent that the original proposal of 60 linear feet of wall was changed by Complainant to 200 linear feet plus installation of steps. He stated that the cracking in the columns is due to another contractor of Complainant adding a 500 to 1,000 pound electric gate which the columns were not designed to accommodate. He conceded that Directive item numbers 1 (footing not poured), 3 (steps unlevel), and 4 (columns uneven) existed and were not caused by the gate. He indicated that the steps Respondent installed were unlevel because pre-existing pavers adjacent to the steps were unlevel.
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, the Complainants 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) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following
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. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, 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 establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Change in the scope of the work does not excuse failure to perform any of the work in a professional and workmanlike manner. Further, there was insufficient evidence presented to show that the later-installed gate by Complainant was the underlying cause of any of the Directive items. There was also insufficient evidence presented to show that pre-existing pavers were unlevel or otherwise deficient, and even if they were, this does not excuse the installation of unlevel steps to match this pre-existing work.
7. Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. Respondent presented no evidence as to its reason for not even attempting to correct the deficiencies.
8. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Anything Masonry, Inc.’s, License Number 273626 is suspended for five days.
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, April 3, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors