ALJDEC decisions subject to certification as final

2018A-1862-CHC-ROC · Registrar of Contractors · 2018-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2018. APPEARANCES: Russell Gundlach, Complainant; George Poston, Respondent and Qualifying Party; Steve Kline, Investigator, ROC; Timothy Jordan; Ethan Strickland. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT Respondent, Flat Line Grading and Paving LLC, (Respondent) is the holder of License No. 294631 issued by the Arizona Registrar of Contractors (Registrar).[1] On or about October 3, 2017, Russel Gundlach, (Complainant) entered into a contract [the “Contract”][2] with Respondent to provide excavation per plans provided for a slab used for Complaint’s new residence construction. The contract proposal specifies that the Respondent will provide the job rip rap and the Respondent will provide the filter fabric. On or about April 23, 2918, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Steve Kline. On or about May 29, 2018, a jobsite inspection [“JSI”] was conducted by Investigator Kline. Investigator Kline, thereafter on June 12, 2018, issued a Written Directive to Respondent 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 6-28-18. [emphasis in original].

You are hereby directed to remedy the following violations by the appropriate means: Respondent shall complete project per contract agreement properly executed change orders, and local building codes.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. [3]

Following the issuance of the Written Directive, Respondent was contacted via e-mail on July 5, 2018 by Investigator Kline who was advised that the Respondent did not return to the project after the Directive was issued and did not correct any work by the Written Directive’s June 28, 2018 deadline. On July 5, 2018, the Registrar issued a Citation against Respondent, charging possible violations of A.C.C. Rule 4-9-108, titled “Minimum Construction Standards,” and thereby of A.R.S. § 32-1154(A)(3) and of A.R.S. § 32-1154(A)(22)[4] A hearing was held on September 4, 2018 before the Office of Administrative Hearings, an agency independent and separate from the Registrar of Contractors. Investigator Kline testified consistently with his job site inspection notes[5],that of the nine items noted by him on the Complaint, only one item presented a below standard workmanship issue: Complaint Item 3: Filter fabric was not provided for rip rap Investigator’s Observation: Respondent stated he would provide the fabric. Governing Rule: Violation of Any Rule Adopted By the Registrar 32-1154 A-3 Namely Rule R4-9-108. [emphasis in original].

Investigator Kline pointed out that the “[j]ob is not completed per contract. It appears there are some plan and contract interpretation issues between the parties. The only workmanship issue identified by the Investigator relates to Respondent’s failure to provide rip-rap[6] fabric. Per the agreement of the parties,[7] the Complainant was to provide the rip- rap materials and the Respondent was to provide fabric that underlays the rip-rap. It is uncontradicted that Respondent did not provide the rip-rap fabric as required by the contract, that this lack of fabric was observed a the JSI as a workmanship issue and that Respondent did not provide or lay the fabric before the Written Directive’s deadline of 5:00 p.m. on June 28, 2018. Complainant testified that numerous items called for in the parties’ contract were left incomplete or not done.[8] The Respondent rested without calling any witnesses or providing evidence in support of its Case-in-Chief. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 4, 2018. Since Respondent’s license was issued on October 17, 2014, there is no record of any complaints filed or discipline imposed on Respondent’s license.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). “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) 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: ***** 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…. A.A.C. R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” As to the issue of poor workmanship, the evidence is uncontradicted that Respondent did not provide the rip-rap fabric as required by the contract, that this lack of fabric was observed a the JSI as a workmanship issue and that Respondent did not provide or lay the fabric before the Written Directive’s deadline of 5:00 p.m. on June 28, 2018. Therefore, Complainant has, by a preponderance of the evidence established that Respondent did not perform the 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).[9] Complainant has, by a preponderance of the evidence, established that Respondent failed to comply with the Written Directive, without reasonable excuse, before the Directive’s stated deadline of 5:00 p.m. on June 28, 2018 and has shown by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(22).[10] Inasmuch as Respondent’s workmanship has been shown to be below workmanship standards and that the Respondent failed or refused, without excuse, to comply with the CWO, a fine should be imposed A.R.S. § 32-1154(E) RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that a civil fine of Five Hundred Dollars ($500.00) be ordered paid by the Respondent Flat Line Grading and Paving LLC, License No: 294631. IT IS FURTHER RECOMMENDED that if Respondent Flat Line Grading and Paving LLC, License No: 294631 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. 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 will be 40 days from the date of that certification.

Done this 3rd day of October, 2018.

/s/Randolph D. Wolfson Administrative Law Judge.

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge indicated on the record at hearing that Administrative Judicial Notice is taken of the entirety of the Registrar’s record in this case, including but not limited to, the Registrar’s public website information. [2] See, Agency Record, “Intake Complaint Submittal1.pdf”, page one of attachments entitled “Estimate”. [3] See, Agency Record, “Rcc Corrective Work Order1.rtf” [4] 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. 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. [5] See, Agency Record, “Rcc Job Site Inspection Notes1.rtf” [6] “Rip-Rap” refers to “a foundation or sustaining wall of stones or chunks of concrete thrown together without order (as in deep water) also: a layer of this or similar material on an embankment slope to prevent erosion.” Merriam-Webster's Collegiate® Dictionary, Eleventh Edition, Merriam-Webster.com 2018. [7] See, Agency Record, “Intake Complaint Submittal1.pdf”, page one of attachments entitled “Estimate”, supra. [8] Inspector Kline found only one of many items pointed out by the Complainant to involve a workmanship issue, i.e., failure to provide rip- rap fabric per the contract. It is uncontradicted that all of the other items subject to inspection were found by Inspector Kline to be attributable to “some plan and contract interpretation issues between the parties” – but not related to Registrar of Contractors construction standards or statutory violation. [9] 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.” [10] 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