ALJDEC decisions subject to certification as final
2017A-751-CHC-ROC · Registrar of Contractors · 2017-06-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Elizabeth Thomas
COMPLAINANT
-v-
SNT Construction, LLC,
License No. 292025
RESPONDENT
No. 2017A-751-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 12, 2017
APPEARANCES: Elizabeth Thomas on her own behalf; Shane Charles for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On April 26, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 12, 2017, at the Office of Administrative Hearings.
Respondent SNT Construction, LLC holds an R-62 residential license (number 292025) issued by ROC. Shane Charles is SNT’s qualifying party.
Complainant Elizabeth Thomas entered into a contract with SNT under which SNT agreed to remove a parapet wall; clean and prep the roof for Kool Kote primer, felt, and Kool Kote elastomeric; repair all cracks and seams on roof using Kool Kote primer, felt, and seal with Kool Kote; repair cracks on flashing; and to seal entire roof with Kool Kote.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Through the Citation, ROC alleges that SNT may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), (A)(16), and (A)(22).
The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke SNT’s license.
On February 8, 2017, Ms. Thomas filed a complaint with ROC alleging workmanship and other deficiencies on SNT’s part.
In response to Ms. Thomas’s complaint, ROC Investigator Gregory Johndrow conducted a job-site inspection on March 3, 2017.
On March 8, 2017, ROC issued to SNT a Directive that required SNT to correct by appropriate means “Mesh and roof repairs not made”.
The Directive required SNT to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. March 24, 2017.
The contract between the parties does not call for the use of mesh.
On March 21, 2017, ROC received from SNT a response to its Directive in which SNT wrote that the project was a remodel, that SNT was not performing roof repairs, and it had not contracted to use any mesh on the project. In its answer to the Citation, SNT again informed ROC that it had not contracted to use any mesh on the roof. In both documents, SNT also informed ROC that it had complied with its contract.
At the hearing, Mr. Charles testified as to his confusion regarding the Directive and allegations considering that the contract had not called for the use of mesh.
At the hearing, Mr. Johndrow acknowledged that the contract did not call for use of any mesh. Mr. Johndrow acknowledged that he used the term “mesh” because that is what Ms. Thomas wrote in her complaint.
Mr. Johndrow testified as to his opinion that the work on the roof was not appropriately done because it did not appear that there had been enough elastomeric coating applied and because he could observe areas with cracks that were not repaired. Mr. Johndrow acknowledged that he had no way to know how much elastomeric was applied and he testified to the effect that the contract did not provide any set volume or other measure of the application rate.
Ms. Thomas testified that Mr. Charles had agreed to provide one thick coat of elastomeric, but in her opinion SNT had not done so.
Neither party presented any evidence or legal authority regarding the scope of an R-62 residential remodeling 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).
Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, 76 P.3d 892 (App. 2003).
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:
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
3. Violation of any rule adopted by the registrar.
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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
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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.”
Ariz. Admin. Code section R49103(B), R-62 MINOR HOME IMPROVEMENTS, restricts the license holder to:
Remodeling, repairs, and improvements to existing structures or appurtenances not to exceed $5,000 for labor and materials per project per dwelling or appurtenance. The minor home improvement contractor shall not perform structural work to any existing structures or appurtenances, including load bearing masonry or concrete work (with the exception of on-grade flat work), and load bearing carpentry work (with the exception of patio or porch covers). All electrical, plumbing, air conditioning, heating, boiler, and roofing work shall be performed by an appropriately licensed contractor. (Underscore added).
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Mr. Johndrow provided credible testimony that SNT’s work was poorly done; photos in the administrative record show that there were cracks or seams that were not properly repaired and/or coated with elastomeric. The preponderance of the evidence shows that SNT violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner.
There were no plans or building codes offered into evidence. The contract between the parties does not specify how much elastomeric was to be applied to the roof and does not call for the use of any mesh. The preponderance of the evidence does not show that SNT departed from, or disregarded, plans or specifications or any building codes in violation of Ariz. Rev. Stat. section 32-1154(A)(2).
SNT responded to ROC’s Directive prior to the deadline and provided a copy of the contract showing that it had not agreed to use mesh on the project. The Directive was in error and SNT’s failure to comply was justified. The preponderance of the evidence does not show that SNT violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with ROC’s Directive without a valid justification.
By contracting to repair cracks and seams, and to apply primer, felt and elastomeric to the roof, SNT has engaged in roofing. See Ariz. Admin. Code § R49104(B)(CR-42 Roofing license includes applying coatings to roofs).
The preponderance of the evidence shows that SNT violated Ariz. Rev. Stat. section 32-1154(A)(16).
Considering the facts and circumstances of this matter, SNT’s license should be suspended for one day.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter SNT Construction LLC’s license number 292025 is suspended for one day.
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, June 13, 2017
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors