ALJDEC decisions subject to certification as final

2018A-3926-ROC · Registrar of Contractors · 2019-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2019, 1:00 P.M. APPEARANCES: Complainant Dianna McNabb appeared on her own behalf; Respondent appeared through James Sparks, Esq. ADMINISTRATIVE LAW JUDGE: Roger Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Sledge Concrete Coatings. LLC (Respondent), is the holder of License Numbers 266689, 286152, and 322532 issued by the Registrar of Contractors (Registrar). 2. On or about August 22, 2018, Dianna McNabb (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of pavers for Complainant in Anthem, Arizona. 3. After an inspection of the job site on October 16, 2018, the Registrar issued a Directive dated November 19, 2018, requiring Respondent to remedy various alleged violations by December 7, 2018, as follows: Complaint Item 1: Veneer pavers glued to concrete without sand bed on patio; Complaint Item 3: Techniseal grout used on veneers when bag states not to use; Complaint Item 4: Cracks in techniseal grout due to improper installation. 4. After being informed that the Directive items had not been resolved, the Registrar then issued a Citation to Respondent, dated December 12, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); 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 February 13, 2019, at 1:00 P.M. At the hearing, Complainant Dianna McNabb testified on her own behalf; Respondent presented the testimony of Richard Sledge, Qualifying Party. Jim Dimond, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 -`18 and Respondent’s exhibit numbers 1 - 19.[1] Complainant’s motion to exclude Respondent’s exhibits as untimely was denied. 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 inspections. Specifically, he testified that the Directive items had not been corrected. With respect to Directive item 4, he stated he observed two areas of dip, one at the front of the house near the side gate and the other behind the gate on the walkway to the back patio that appeared to be from improper compaction. He further testified that Respondent’s proposed corrective work was consistent with repairs needed to remedy the deficiencies. Complainant Dianna McNabb testified in relevant part as to the progression of the project and stated that none of the Directive items had been corrected and that the project has since been redone by another contractor. She stated further that Respondent’s proposed corrective work would invalidated any warranty and would not have conformed to proper specifications. 8. Richard Sledge, Qualifying Party of Respondent, testified on behalf of Respondent in relevant part that he was not granted access to do the corrective work. He stated Complainant by email on November 28, 2018, demanded to know how corrective work was to be done and suggested the entire project needed to be demoed and redone. (Respondent’s Exhibit 2 (5)). Respondent responded on November 30, 2018, describing how the work would be done and asked if she wanted to proceed. (Respondent’s Exhibit 2 (6)). Complainant responded that day suggesting the project needed to be demoed and redone and called Respondent’s proposed corrective work “completely unacceptable.” (Respondent’s Exhibit 2 (7)). 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, 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 among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, …

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. …

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. 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. A.R.S. § 32-1154(A)(2). Complainant has presented sufficient evidence to establish Respondent’s violation of A.R.S. § 32-1154(A)(2) for the departure from or disregard of plans or specifications or any applicable building codes in any material respect that is prejudicial to another. With respect to the Directive items 1 and 3, Respondent did not present sufficient evidence to refute these departures. 7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish Respondent’s violation of A.R.S. § 32-1154(A)(3) for the failure to perform work in a professional and workmanlike manner. With respect to the Directive item 4, Respondent did not present sufficient evidence to refute this deficiency. 8. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22), namely, a failure on the part of Respondent to complete corrective action without a valid justification. Rather, Respondent has presented sufficient evidence to support a finding of a valid justification for not performing corrective work. The Tribunal finds that Complainant did not provide Respondent reasonable access to her property for corrective work to be performed. 9. Respondent proposed corrective work which Complainant apparently would not accept and therefore Complainant did not in effect allow access. While Complainant may have had a particular plan for the corrective action she desired, she was not permitted to dictate how and what corrective work was to be performed. A contractor may perform corrective work as it deems fit, and would face whatever consequences there may be from the Registrar if such corrective work did not meet minimum workmanship standards or departed from specifications. Further, Complainant may not prevent proposed corrective work by determining unilaterally that Respondent’s corrective work would not meet standards before the corrective work had even begun. 10. Complainant may very well have a case for legal damages against Respondent for Respondent’s alleged failure to meet workmanship standards and departure from specifications. However, due to Complainant’s failure to afford Respondent a reasonable opportunity to undertake corrective action, such failure does justify imposing disciplinary action. 11. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in this case shall be dismissed. 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, March 5, 2019.

/s/ Roger A. Geddes_____ Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractor

----------------------- [1] The Tribunal also took administrative notice of the documents submitted by the Registrar to the Arizona Office of Administrative Hearings.

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