ALJDEC decisions subject to certification as final

2018A-05050-ROC · Registrar of Contractors · 2019-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2019. APPEARANCES: John M. Bzdel, Complainant, Ann Hazel, witness for Complainant, Jack Grimm, ROC Investigator ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding an October 23, 2018 Complaint against the Respondent, All About Stucco and Stone LLC [hereinafter, “AASS”] for poor and below standard workmanship. On January 25, 2019, the Registrar issued a Notice of hearing setting a hearing at 8:30 a.m. on March 4, 2019. The Registrar mailed copies of the Notice of hearing to AASS at its address of record filed with the Registrar for this licensee. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” Member and Qualifying member Vicki Martin timely filed AASS’s Answer to the Complaint and Citation in this case on January 11, 2019. The Answer states

I am unable to repair privacy wall due to my license is no longer active as of July 1, 2018. I no longer carry workers compensation or general liability insurance. My husband passed away unexpectedly in July 2017.

The filing of AASS’s Answer is strong and compelling evidence that AASS had received actual Notice of Hearing, the Complaint and the Citation at the address of record for AASS.

Per the Notice of Hearing mailed to AASS, a hearing on this matter was conducted on March 4, 2019. AASS did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, AASS did not appear through and authorized member, employee or attorney. Consequently, AASS did not present any evidence at the March 4, 2019 hearing to defend its license. ROC Investigator Jack Grimm testified that at his Job Site Inspection [“JSI”] conducted December 6, 2018, in follow-up to the Complaint, AASS did not appear. Notice of the inspection was provided to AASS at its address of record. Mr. Grimm testified that at the JSI he observed a four foot tall courtyard wall of block and masonry product constructed by AASS. He observed a 20 foot crack appearing on the crown of the wall. He noted that the crack was wider than the 1/16th inch allowable under the ROC standards. He attributed the excessive crown crack to poor and substandard workmanship of AASS. Mr. Grimm issued a Corrective Work Order [CWO] to AASS on December 7, 2018[1] as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 12- 24-2018.

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

1. Correct locations of cracked stucco on top of front courtyard wall. NOTE: This license is currently inactive.

In the CWO, AASS was given until December 24, 2018 at 5:00 p.m. to notify the ROC of its compliance with the CWO. The ROC having not received a notice of compliance from AASS, on January 2, 2019, the ROC issued its Citation against AASS charging two alleged violations: a. A violation 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

b. A violation of A.R.S. § 32-1154(A)(22)[2]

Complainant John M. Bzdel testified at hearing. He introduced two photographs taken by him at or near the date of the JSI. He testified that the top coat and the brown coat material for the wall were applied on the same day. Not enough time was allowed to pass to allow each coat to dry before applying a top coat. He was of the opinion that the application of the materials was improper resulting in the crown cracking. Per the Registrar’s Public Access Website, AASS’s license, as of March 21, 2019, indicates that AASS’s license was first issued on December 20, 2013 and has been voluntarily cancelled. No pending or other Complaints filed with the Registrar is noted and no prior discipline of AASS is noted on the Registrar’s Public Access Website. CONCLUSIONS OF LAW The Registrar of Contractors has jurisdiction over Complaint No. 2018A- 05050-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). PVTS LLC dba Phoenix Valley Tree Service is a licensee. 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). AASS presented no evidence. 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: ***** 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.

Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” Mailing of the copies of corrective work order and the Notice of Hearing to AASS’s last known address of record with the Register and at the address on its written answer was reasonably calculated to provide AASS notice was reasonable. AASS is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D). By its failure to appear, AASS has presented virtually no evidence to defend its license. AASS has failed to meet its burden of proof. By a preponderance of the evidence, AASS did violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9- 108. By a preponderance of the evidence AASS did violate A.R.S 32-1154.A.23 by failing to comply with the written directives of the Registrar of Contractors, i.e. the CWOs, within a reasonable amount of time without valid justification. That AASS did ignore each effort of the ROC to address the concerns of the Complainant - in that AASS did not appear for any of the ROC Inspector’s inspections and that AASS failed to appear at the hearing in this case - is an aggravating circumstance. AASS’s license should, under the facts presented in this case, be revoked.

RECOMMENDED ORDER NOW THEREFORE, IT IS RECOMMENDED that All About Stucco and Stone LLC’s ROC License number ROC 247194, is revoked.

Done this day, March 21, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The CWO was mailed to AASS’s address of record with the Registrar as well. [2] 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.

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