ALJDEC decisions subject to certification as final
2018A-387-CHC-ROC · Registrar of Contractors · 2018-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ericka L Malloy,
COMPLAINANT,
v.
Beach Ventures Inc,
License No: 186811
RESPONDENT.
No. 2018A-387-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 3, 2018, 8:30 A.M.
APPEARANCES: Complainant Ericka Malloy appeared on her own behalf; Zane Beach, President and owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Beach Ventures, Inc., (Respondent), is the holder of License Number 186811 issued by the Registrar of Contractors (Registrar).
2. On or about January 26, 2018, Ericka Malloy (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work and abandonment in connection with the resurfacing of a balcony deck by Respondent at Complainants’ residence in San Tan Valley, Arizona. The Complaint also reflected a contract amount of $1,400.00.
3. Upon completion of an inspection performed by the Registrar on February 20, 2017, the Registrar issued a Directive, dated February 22, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 12, 2018, as follows:
1. Dip in the decking and poor appearance of sand finish
4. After a compliance inspection was conducted on March 13, 2018, at which it was observed that corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated March 14, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include information in contract);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for May 3, 2018, at 8:30 A.M. Complainant Ericka Malloy testified on her own behalf and presented the testimony of Thomas Malloy and Denise Malloy. Zane Beach, President and owner, testified on behalf of Respondent. Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 13 and Respondent’s exhibit numbers 1 - 4.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that the attempted repairs in response to the Directive were poorly done, that there was still a quarter inch dip over a two foot span, and that there still was excess sand and multiple colors and textures on the deck surface.
7. Complainant Ericka Malloy presented photographs documenting the extent of the dip in the balcony deck. (Complainant’s Exhibit 2). She testified that when the Investigator came to do the compliance inspection the day after corrective work was attempted, that the Investigator did not walk on the deck surface and took photographs of the deck from inside the residence. She testified that Respondent did not show up for the corrective work until March 12, the last day to perform corrective action, and did so without an appointment.
8. Complainant presented a copy of the agreement between the parties reflecting a contract amount of $1,400.00. It does not include any disclosure regarding potential complaints to the Registrar. (Complainant’s Exhibit 1).
9. Thomas Malloy on behalf of Complainant testified as to the initial discussions regarding the placement of new plywood to fix the dip in the roof.
10. Denise Malloy on behalf of Complainant testified she was present when Zane Beach came to the residence when he stated that Respondent’s earlier work was not done properly and that he would fix it. She further attested to the date of the most recent photographs taken by Complainant.
11. Zane Beach testified on behalf of Respondent that he believed the corrective work addressed the Directive and that any remaining deficiencies were the result of Complainant not allowing the deck to cure sufficiently before walking on it or sweeping it. Mr. Beach further offered evidence as to the slope of the deck. (Respondent’s Exhibit 2).
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
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. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:
...
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The evidence reflected that the dip in the deck was not corrected and that the surface was still uneven and inconsistent. Respondent’s argument that this was attributable to Complainant not allowing the deck to properly cure was unpersuasive and not supported by the evidence.
8. Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the contract between the parties was in excess of $1,000.00 and did not include disclosure of the notice of the owner’s right to file a complaint with the Registrar.
9. Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Respondent presented no evidence to support a finding of a valid justification for Respondent not performing the corrective work in a workmanlike manner.
10. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Beach Ventures, Inc.’s, License Number 186811 is suspended for two days.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, May 23, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors