ALJDEC decisions subject to certification as final
2017A-5408-CHC-ROC · Registrar of Contractors · 2018-04-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Alysia Jean and Patrick Staar,
COMPLAINANT,
v.
Sierra Deck Inc,
License No: 147543
RESPONDENT.
No. 2017A-5408-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 10, 2018, 8:30 A.M.
APPEARANCES: Complainants Alysia Staar and Patrick Staar appeared on their own behalf; Arnold Perez, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Sierra Deck, Inc. (Respondent), is the holder of License Number 147543 issued by the Registrar of Contractors (Registrar).
2. On or about October 25, 2017, Alysia Jean and Patrick Staar (Complainants), filed a Complaint against Respondent with the Registrar alleging poor work in connection with pool decking work performed by Respondent at Complainants’ residence in Chandler, Arizona.
3. Upon completion of an inspection performed by the Registrar on November 29, 2017, the Registrar issued a Directive, dated December 8, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 22, 2017, as follows:
1. Entire edge of pool poorly finished, including texture and color.
2. Multiple areas of attempted patchwork on edges does not match.
3. East edge not straight/level (concrete not flush with tile).
4. Overall color is gray vs. oatmeal buff ordered.
5. Areas missing texture altogether (Italian slate texture).
6. Unfinished seam lines.
7. Chips and divits in multiple locations.
8. 3 attempts to correct issues stained tie grout (waterline tile grout).
4. After a second inspection of January 9, 2018, at which it was observed that corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated January 12, 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include information in contract);
c. 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 April 10, 2018, at 8:30 A.M. Complainants Alysia Staar and Patrick Staar testified on their own behalf. Arnold Perez, owner, testified on behalf of Respondent. Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 7.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainants 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 as to the various deficiencies as evidenced by photographs he took on January 9, 2018.
7. Complainant Alysia Staar presented additional photographs documenting the various deficiencies with the pool decking. (Complainant’s Exhibit 6). She testified as to Respondent’s various unsuccessful efforts to correct the deficiencies including three times between September 15 and October 22, 2017, which she stated only made the deficiencies worse. Ms. Staar further stated that Respondent’s last attempt at corrective work on December 18, 2017, in response to the Directive was again unsuccessful. She further testified that she was told by another contractor that the deficiencies were not correctable by repair and that the decking must instead be completely replaced.
8. Complainants presented a copy of the agreement between the parties reflecting a contract amount of $6,977.00 that does not include any disclosure regarding potential complaints to the Registrar. (Complainant’s Exhibit 1).
9. Arnold Perez testified on behalf of Respondent that he took full responsibility with the issues in the work. He further stated he did not complete the corrective work because he indicated he did not have time to do so but would like another opportunity.
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, 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.
...
12. Failure in any material respect to comply with this chapter.
...
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. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:
...
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. Complainants have 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). Respondent did not present any evidence to contest the existence of the deficiencies.
8. Complainants have presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the contract between the parties in excess of $1,000.00 did not include disclosure of the notice of the owner’s right to file a complaint with the Registrar.
9. Complainants have presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Respondent presented no evidence to support a finding of a valid justification for Respondent not performing or completing the corrective work.
10. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), 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, Sierra Deck, Inc.’s, License Number 147543 is suspended for two 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 30, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors