ALJDEC decisions subject to certification as final
2017A-6081-CHC-ROC · Registrar of Contractors · 2018-05-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jessica Woelper Cox,
COMPLAINANT,
v.
Golden Developing Solutions, LLC,
License No: 308901
RESPONDENT.
No. 2017A-6081-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 7, 2018
APPEARANCES: Complainant Jessica Cox appeared on behalf of herself.
Stavros Triant appeared on behalf of Respondent Golden Developing Solutions, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Golden Developing Solutions, LLC (“Golden Developing”) holds Arizona contracting license No. 308901.
2. Stavros Triant is the qualifying party for Golden Developing.
3. Golden Developing owns Lato Glass.
3. On or about January 18, 2017, Golden Developing gave an estimate to Kevin Barrington to install sliding glass windows in Ms. Cox’s home. Mr. Barrington was a mutual friend of Ms. Cox, Ms. Cox’s husband, and Mr. Triant.
4. Golden Developing installed sliding glass doors at Ms. Cox’s residence.
5. Golden Developing was aware that more concrete needed to be poured before installing the doors. Golden Developing did not obtain a written waiver regarding the inadequacy of the concrete from Mr. Barrington, Ms. Cox, or Mr. Cox, before installing the doors.
6. On or about December 7, 2017, the Arizona Registrar of Contractors (“Registrar”) received a complaint from Ms. Cox alleging poor work on the part of Lato Glass.
7. On or about February 1, 2018, the Registrar’s Investigator, Beau Cruz, conducted on on site job inspection.
8. On or about February 2, 2018, the Registrar issued a Directive to Golden Developing. The Directive provides, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on February 17, 2018. You are hereby directed to remedy the following violations by the appropriate means:
1. Cracked tiles.
Repair cracked tiles.
2. Hollow tiles.
Correct hollow sounding tiles. (only observed about four (4) tiles).
3. Unlevel tiles, which also caused large gaps between the tiles and baseboards in some places.
Correct tile with lippage greater than 1/32 inch. No issues with baseboard.
4. Misapplied grout to were certain "remains" appear on the face of the tile.
Clean areas of minor grout residue on tile edges. (Roughness felt on tile is the characteristic of this tile).
5. Damage to newly renovated bathroom, where grout was left on Mrs. White's new shower.
Clean residue grout on hall shower tiles.
6. The bathroom sink now needs to be replaced due to certain products being poured down the drain by the laborers.
Clean what appears to be residue grout in hall sink basin.
7. Landscape damage.
Clean residue mess at tree base and block wall at side of house.
9. Golden Developing did not comply with the Directive by the due date.
10. On or about February 21, 2018, the Registrar issued a Citation against Golden Developing’s contractor’s license. The Registrar alleged that Golden Developing violated sections 32-1154 (A)(3) and (A)(22).
11. Golden Developing filed a timely response to the Citation.
12. A hearing was held on May 7, 2018.
13. Ms. Cox presented her own testimony and the testimony of her husband, Ryan Cox. Mr. Triant testified on behalf of Golden Developing.
14. Administrative notice is taken of Respondent’s prior License record on
May 29, 2018. Such prior License record reflects that Respondent’s License No. 308901
was first issued on September 23, 2016, and was voluntarily cancelled on May 7, 2018. Such prior License record also reflects that there were no other open complaints or prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or
entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or
modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency
compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result.
Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote
justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public
from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
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3. Violation of any rule adopted by the registrar.
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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.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall
perform all work in a professional manner.”
10. Respondent’s voluntary cancellation of its license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).
11. The preponderance of the evidence shows that the issues found by
Investigator Cruz constituted workmanship issues with the installation of sliding glass doors installed at Mrs. Cox’s home.
12. The preponderance of the evidence shows that Golden Developing should have known that the conceret work was defective and that, therefore, Golden Developing accepted the surface and is responsible for any deficiencies in the concrete under the Registrar’s statutes. Respondent’s qualifying part stated at the hearinh that he “guessed that he should have obtained a written waiver from Ms. Cox.”
13. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
14. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of Ariz. Rev. Stat. section 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 Golden Development License No. 308901 for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, May 29, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors