ALJDEC decisions subject to certification as final

2017A-6230-CHC-ROC · Registrar of Contractors · 2019-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

ADMINISTRATIVE LAW JUDGE: Randy Wolfson _____________________________________________________________________ FINDINGS OF FACT Respondent, Robert Buruato Barcelo d/b/a, Arizona's Independent Renovation Co, [hereinafter, “Air-Co”] is the holder of License Numbers 105957, 149219, 161500 and 082214 issued by the Arizona Registrar of Contractors (Registrar).[1] On December 18, 2017, the Registrar received a Complaint against Air-Co from Complainant Sally Jo Staron [hereinafter “Staron”] alleging Air-Co performed poor, below standard work in the construction of a disability modification at her residence located at 1019 South 130th Street in Gilbert, Arizona. The Registrar assigned the complaint to Investigator Steve Nelson. In follow-up to the Complaint, Mr. Nelson conducted a Jobsite Inspection [“JSI”] on January 22, 2018. His findings are detailed in his Job Site Inspection Report as follows:[2] Complainant: Sally Staron -present Respondent: AZ Independent- Bob (present) Also present, Lauri Swanson (ROC UL Inv), Robert Kropp and Melanie Dykstra from City of Gilbert.

Contract for this project has been terminated by the City of Gilbert. The work was for Labor only, the Complainant has had 2 other contractors on site completing work prior to the Respondent. The City of Gilbert has terminated this contract due to federal regulations on project length (over 180 days), Respondent was paid for work completed.

Complaint Item 1: Floor pan not installed according to manufacturer’s recommendations. Investigator’s Observation: The floor pan was solidly installed, but there is an aprox 1/8" gap under the front lip. The Complainant alleges that the Respondent used shims, Manufacturer’s recommendation states that the pan should lie flat on the floor and any deviations can be mitigated by weighing down the pan. Manufacturer also recommends use of thinset or another leveling mix under the base for leveling purposes and use of silicone for securing the base to the floor….The Complainant is worried about issues that could occur in the future from improper installation. The Respondent should install according to manufacturer's recommendations by the appropriately licensed party. Governing Rule: Workmanship Rule: ARS 32-1154A3

Complaint Item 2: Scratch/crack on rear wall of shower (Onyx has agreed to furnish replacement materials free of charge- See attached correspondence). Investigator’s Observation: The shower enclosure was provided by the Complainant. The complainant alleges that is was not installed according to manufacturer’s recommendations. The walls appeared to be solidly bonded, but there was a scratch/crack on the rear wall above the shampoo/soap niche. The Complainant stated that she had documentation from the manufacturer that it was installed incorrectly, but they (the manufacturer) will replace the panel free of charge. I am waiting for that correspondence from the homeowner. ***Rec'd correspondence from the Complainant from Onyx stating there was a crack. Manufacturer's recommendation states the cut for the niche should be done in place once the back wall is secured, but it appears that the Respondent did it on some saw horses in the yard prior to installation. See pics 8 and 10. Governing Rule: Workmanship Rule: ARS 32-1154A3

Complaint Item 3: Removal of construction debris from yard. Investigator’s Observation: This is part of the contract that the Respondent was paid for and should be completed…. Governing Rule: N/A:

On January 24, 2018, February 13, 2018, and March 6, 2018, Investigator Nelson issued a Written Directive containing a Corrective Work Order [CWO] to Air-Co 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 notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 16, 2018. [emphasis in original].

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

1. Floor pan not installed according to manufacturer’s recommendations. 2. Scratch/crack on rear wall of shower (Onyx has agreed to furnish replacement materials free of charge- See attached correspondence). 3. Removal of construction debris from yard.

If additional time is needed due to lead time for replacement parts, this Directive will be extended upon receipt of verification of ordered material.

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

Following the issuance of the Written Directive, Air-Co failed to comply with five of the six the items listed in the CWO on or before the CWO’s stated deadline. Thereafter, on March 26, 2018, the Registrar issued a Citation against Air-Co, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22)[3]

A hearing was set for this case before the Arizona Office of Administrative Hearings, an agency independent from the Arizona Registrar of Contractors. Hearing in this matter, which has been pending for close to a year, has been continued several times. |On March 14, 2019, Air-Co filed “ Respondent’s Motion To Stipulate To | |Liability” which Motion stipulates as follows: | |Air-Co accepts liability generally under the Citation’s charges of | |failure to comply with A.R.S. §§ 32-1154(A)(3) and (A)(22); it does not,| |and need not, admit the myriad of factual allegations advanced by | |Complainant…Accordingly, Air-Co stipulates to the Court’s issuance of a | |ruling that Air-Co is liable under A.R.S. §§ 32-1154(A)(3) and (A)(22) | |only and that the hearing set for April 10th be vacated. |

Complainant Staron has not filed a Response to the Air-Co Motion to Stipulate Liability and the time within which to object to or to otherwise respond has lapsed.[4] AirCo’s Motion to Stipulate to Liability is granted. Administrative Judicial notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 29, 2019. The Registrar’s record reflects that license number 082214 is a class R-39 Air Conditioning and Refrigeration, Including Solar license and is Active; license number 161500 is a class CR-11 Class Electrical license that is Active; license number 149219 is a class C-39 Air Conditioning, Refrigeration license and is Active and license number 105957 is a class B General Residential Contractor license which is active. Such prior License record of the Registrar reflects that AirCo’s License Numbers 105957, 149219, 161500 and 082214 have never been subject to any Registrar’s discipline in the past. This is a mitigating factor.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 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'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. §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: ***** 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.

Ariz. Admin. Code section R4 9 108(A) provides that “A contractor shall perform all work in a professional manner.” Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars upon a contractor for each violation of ARIZ. REV. STAT. § 32-1154(A)(22). The effect that granting AirCo’s “Motion to Stipulate to Liability”[5] has in this matter is that AirCo may not and does not contest that Staron has met her burden to prove, by a preponderance of the evidence, that each of the statutory violations alleged in the Citation are true. Therefore, Staron has established that AirCo did not perform their work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[6] Further, Staron has proven, by a preponderance of the evidence, that AirCo violated A.R.S. § 32-1154(A)(22).[7] Based upon AirCo’s license records and the foregoing facts, a fine of $500.00 is appropriate. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that Respondent Robert Buruato Barcelo d/b/a, Arizona's Independent Renovation Co, License Numbers 105957, 149219, 161500 and 082214 be assessed a civil penalty of $500.00 to be paid, in full, with certified funds, on or before thirty days following the effective date of the Registrar’s Order. 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 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 civil penalty. FURTHER IT IS RECOMMENDED remanding this case to the Registrar for such further action as may be necessary.

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 is forty days after the date of that certification.

Done this day, March 28, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Judicial Administrative Notice is taken of the entirety of the Registrar’s electronic and physical records in this case, including – but not limited to - the Registrar’s public access website. [2]Agency Record,“ Rcc100 Job Site Inspection1.rtf” [3]A.R.S. § 32-1154(A)(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.. [4]See, A.A.C. R2-19-106 (D): “Response to Motion. A party shall file a written response stating any objection to the motion within 5 days of service, or as directed by the administrative law judge.” [5] See, preceding ¶8 of the Findings of Fact, supra. [6] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [7] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826