ALJDEC decisions subject to certification as final
2018A-1013-CHC-ROC · Registrar of Contractors · 2018-07-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John R and Denise Tye,
COMPLAINANT,
v.
Solana Outdoor Living LLC,
License No: 309290
RESPONDENT.
No. 2018A-1013-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 11, 2018.
APPEARANCES: John R. Tye, Complainant, Denise Tye, Complainant, John
Smith, ROC Investigator.
ADMINISTRATIVE LAW JUDGE: Randolph D, Wolfson
_____________________________________________________________________
FINDING OF FACT
The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a Complaint and Citation against the Respondent for poor and below standard workmanship, failure to obtain required building permits and failure to timely comply with a Registrar Directive
On May 22, 2018, the Registrar issued a Notice of Hearing setting a hearing at 1:00 pm on July 11, 2018. The Registrar mailed copies of the Notice of hearing to the respondent at tis address of record.
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.”
Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, respondent did not appear through and authorized member, employee or attorney. Consequently, Respondent did not present any evidence to defend its license.
A hearing was conducted on July 11, 2018.
ROC Investigator John Smith testified that he conducted a job site inspection [JSI] on March 26, 2018 in follow-up to the Complaint. Notice of the inspection was provided to the Respondent at its address of record. Both the Complainants and a representative of the Respondent were present for the JSI.
Testifying in conformity with Jobsite General Notes, Investigator. Smith stated:
A Permit will need to be obtained for this project prior to corrective action of poor workmanship allegations. ARS 32-1154 A 2 "...disregard of plans or specifications or any building codes..." citing also Building Code: IRC R105.1 “Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”
Complaint Item 1: Stucco on north and south wall with staircase cracks, paint mismatched. Investigator’s Observation: Substantiated. The walls are block/stucco walls. There are straight cracks and stair step cracks present. Previous patches are visible. There is some variation in texture. There are also areas of mismatched paint. The respondent stated he will be correcting these issues. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108
Complaint Item 2a: Artificial turf damaged by Solana - different company to replace. This was described by the complainant to be the south section of turf Investigator’s Observation: Substantiated. The complainant stated this turf was originally installed in 2012, and that the respondent removed, and reinstalled this section of turf as part of this project. The complainant stated this section of turf is now discolored/faded. The respondent acknowledged this section of turf had a power broom used on it after re-installation. He also stated that should not have happened. He did offer to the complainant to replace this section of turf. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108.
. . .
Complaint Item 4: Gate hardware inadequate closures / latches. Investigator’s Observation: Substantiated. The gates access the backyard and pool area. The gates do not currently self-close far enough to self-latch. The latches do not work properly. The gates are currently in-swinging gates. All pool gates are required to be out-swinging. No permit has been obtained for the pool barrier. Pima County verified that replacing the pool fencing and gates on this project does require a permit. Currently no permit has been obtained. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108.
The Registrar of Contractors issued a Corrective Work Order [CWO] to the Respondent on March 28, 2018 as follows:
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 April 18, 2018.
You are hereby directed to remedy the following violations by the appropriate means:
No permit has been obtained for this project. The Pima County building department has verified that this is permit required work. A permit needs to be obtained. If the local jurisdiction finds corrective issues relating to the respondents work, the respondent will be required to correct those issues by appropriate means. Approved inspection results to be sent to the ROC Investigator.
“Stucco on north and south wall with staircase cracks, paint mismatched.”
“Artificial turf damaged by Solana...” This was described by the complainant to be the south section of turf.
“Gate hardware inadequate closures / latches” The respondent verbally stated he will make the fire-pit table functional.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
On April 25, 2018, Inspector Smith, after notice to the parties, conducted a Compliance Inspection wherein Inspector Smith testified that no work had been commenced on any of the items listed in the CWO.
On April 26, 2018, the Registrar of Contractors [the “Registrar”], issued its Citation against the Respondent alleging:
Charge 1: A violation of A.R.S. § 32-1154(A)(2)).
Charge 2: 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).
Charge 3: A violation of A.R.S. §32-1154(A)(22).
In its Answer dated May 5, 2018, the Respondent stated :
Solana Outdoor Living, LLC was unable to complete the work as defined by the Directive from the Registrar by October 6, 2017...Shortly before the Compliance Inspection, Solana laid off its work force due to financial issues. We retained two employees to complete jobs in progress...On May 1st, our license was suspended for 20 days...At this point in time, it is evident that Solana Outdoor Living LLC is effectively out of business. We do not have the financial means to continue operations in any manner...
On July 3, 2018, Inspector Smith conducted a Pre-hearing Jobsite Inspection. Inspector Smith testified that at this inspection, permits for the location had been obtained, but no code inspection had yet been conducted. He noted that none of the work specified in the CWO had been addressed by the Respondent.
Review of the Registrar’s record of discipline for The Solana Outdoor Living LLC, License No: 309290 shows it has been disciplined with suspension of its license by the Registrar three times.
Complainant John R. Tye offered Complainant’s Exhibits C-1 through and including C-5 which were admitted into evidence. These exhibits are composed of photographs of the workmanship of the Respondent, the written contract of the parties.
CONCLUSIONS OF LAW
The Registrar of Contractors has jurisdiction over Complaint No. 2018A-1013-CHC-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). Solana Outdoor Living LLC, 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).
The Respondent 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:
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 R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The copies of Corrective Work Order and the Notice of Hearing that the Registrar mailed to the Respondent at its address of record and at the address on its written answer were reasonable. Respondent is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D).
Inasmuch as by its failure to appear at hearing in this matter, Respondent has presented virtually no evidence to defend its license. Thus, Respondent has failed to meet its burden of proof.
By a preponderance of the evidence, Respondent 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. These workmanship deficiencies were multiple.
By a preponderance of the evidence, Respondent did violate A.R.S. § 32-1154(A)(22) 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.
By a preponderance of the evidence, Respondent failed to obtain and pass code inspection for its work on this project. Such conduct is a “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state. Such conduct is a violation of A.R.S. § 32-1154(A)(2):
”That the Respondent did ignore each effort of the ROC to address the concerns of the Complainant - in that the Respondent did not make effort to comply with the CWO and that the Respondent failed to appear at the hearing in this case - is an aggravating circumstance. The Respondent’s previous record of discipline is an aggravating circumstance. There are no mitigating circumstances presented.
Pursuant to A.R.S. §32-1154(D), the Registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A.R.S. §32-1154(A)(3). By its failure to comply with the ROC’s CWO, the Registrar should impose a civil penalty of $550.00.
The Respondent’s license should, under the facts presented in this case, be revoked.
RECOMMENDED ORDER
IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter Solana Outdoor Living LLC, License No: 309290 is revoked
FURTHER IT IS RECOMMENDED it be ordered that in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $500.00 is imposed against Solana Outdoor Living LLC, License No: 309290.
Done this day, July 20, 2018.
/s/ Randolph D. Wolfson Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By:________