ALJDEC decisions subject to certification as final

2017A-5449-CHC-ROC · Registrar of Contractors · 2018-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Frank J. Latona,

COMPLAINANT,

v.

Statesman Construction LLP,

License No: 215828

RESPONDENT.

No. 2017A-5449-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 26, 2018

APPEARANCES: Complainant Frank J. Latona appeared on his own behalf. Gary Skrip, Warranty Manager, appeared on behalf of Respondent Statesman Construction LLP.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Statesman Construction LLP (Respondent) is the holder of License No. 215828 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 22, 2014, Frank J. Latona (Complainant) entered into a contract with Respondent for the remodeling of his condominium.

On or about October 27, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 12/8/17.

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

Complaint Item 4: Master bath floor tile spotted on several tiles

Directive: Respondent shall correct by appropriate means

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, no corrective work was performed before the deadline in the written directive. After the deadline in the directive expired, Investigator Gunstra was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Gunstra testified that the parties seem to agree that there is an issue that needs to be addressed, but that the corrective work had not yet been completed.

Complainant testified that Respondent’s first appointment to perform the corrective work was on December 12, 2017, and that Respondent was late for the appointment, so Complainant refused to allow Respondent entry to the property. Complainant indicated that the communication to arrange the December 12, 2017 appointment must have occurred prior to that date, but he could not remember the exact timing of that discussion. Complainant described a second attempt to perform the corrective work that did not occur due to a miscommunication between the parties. Complainant stated he felt that nine tiles needed to be replaced because he did not believe the spots could be repaired.

Mr. Skrip acknowledged there were issues with the tile that need to be remedied. Mr. Skrip testified that he did not receive the written directive until December 4, 2017, and first contacted Complainant on December 6, 2017, to arrange the December 12, 2017 appointment. Mr. Skrip did not indicate that he had notified the Registrar that the written directive was not received earlier and or that he had requested an extension of the deadline by which to comply.

Administrative notice is taken of Respondent’s prior License record on March 19, 2018. Such prior License record reflects that Respondent’s License No. 215828 was first issued on January 21, 2006, and is current. Such prior License record also reflects that there were two open complaints and no resolved/settled/withdrawn complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to compete the corrective work following the written directive being issued and before the deadline in the written directive expired. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 215828 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

Done this day, March 19, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors