ALJDEC decisions subject to certification as final

2018A-400-CHC-ROC · Registrar of Contractors · 2018-07-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Staci L Baxter,

COMPLAINANT,

v.

Beach Ventures Inc,

License No: 186811

RESPONDENT.

No. 2018A-400-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 7, 2018, 8:30 A.M.

APPEARANCES: Staci Baxter appeared on her own behalf; Zane Beach 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 29, 2018, Stacy Baxter (Complainant), filed a Complaint against Respondent with the Registrar alleging incompletion of roofing repairs performed by Respondent at Complainant’s residence in Scottsdale, Arizona. The repairs stem from damage to trusses caused by Respondent’s installation of a roof.

3. Upon completion of an inspection performed by the Registrar on March 1, 2018, the Registrar issued a Directive, dated March 5, 2018, requiring Respondent to correct the alleged deficiency in Respondent’s work by March 26, 2018, as follows:

Complaint Item 1: Five trusses in garage broken due to overload; drywall damaged

Subsequent repair will include removing contents of garage

Respondent was in the process of repairing the trusses prior to the jobsite inspection and agreed to finish

Complaint Item 3: One Pipe Jack (open hole) was not removed/roof not sealed

Respondent agreed to correct.

4. On April 3, 2018, the Registrar conducted a compliance inspection and observed that Respondent had not fully completed Complaint Item 1 of the Directive.

The Registrar then issued a Citation to Respondent, dated April 4, 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)(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 June 7, 2018, at 8:30 A.M. At the hearing, Complainant Stacy Baxter testified on her own behalf. Respondent presented the testimony of Zane Beach. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 3 and Respondent’s exhibit numbers 1 - 3.

6. The Investigator testified on behalf of the Registrar 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 went back to the job site on June 4, 2018, and observed that all the Directive items had been completed. He explained that Directive item no. 3 regarding the pipe jack actually involved a conduit that had been left exposed and needed to be removed but that it had been corrected at the time of the compliance inspection. He stated the truss repairs had been completed by Respondent, but that he had not seen approval of the trusses by the proper agency, which he stated is typically issued, or an engineer’s report. He acknowledged that he was unsure whether this particular jurisdiction required a permit or inspections for this type of work.

7. Complainant testified that even though all Directive items had been corrected by Respondent, she continued with this action because she was concerned that Respondent’s subcontractors would lien her property if they were not paid, and because she had not received a report from a structural engineer regarding the trusses. She further testified that the pipe jacks had still not been painted by the Respondent. She also stated she was told by city of Phoenix that a permit or report of structural engineer was required relating to the truss repair. She further stated that the delay in completing the Directive was caused because Respondent delayed in accepting financial responsibility for the contractors she had selected to do the repairs.

8. Zane Beach testified on behalf of Respondent that Respondent paid another contractor to do the structural repair, another to do drywall repair, and a structural engineer to provide a report with regard to the damage to the trusses. He stated that he was still awaiting the report. After the hearing, 4 Peaks Structural Engineering Group, by letter June 12, 2018, attested that the truss repair had been made per its drawings and that the trusses would perform as per the design. (Respondent’s Exhibit 3).

9. Mr. Beach also testified that he had permitted Complainant to select the contractors that she would be comfortable with to do the repair work and that Respondent would be responsible for paying those contractors. He stated he had signed contracts with these contractors prior to the Directive deadline but that they were not available to do the work prior to the deadline, which he informed the Investigator. He stated that moving things out of Complainant’s garage was also part of the delay and that Complainant had also asked for upgrades to be performed by the drywall company.

10. Mr. Beach further stated that he had not painted the pipe jacks so that it could be confirmed that they were new, which he stated had come in to question before. He stated that all pipe jacks had been replaced even though the Directive only referenced one. He stated further that Complainant’s HVAC contractor had removed a unit and left a hole and that Respondent had sealed the hole and the jack was eliminated, which he stated was work outside the contract he had with Complainant.

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.

...

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. Complainant has not 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). There was no dispute that the Directive items had been corrected. Complainant still complained that Respondent had yet to paint the pipe jacks. While Respondent provided a valid excuse for not yet painting the pipe jacks, this task was not part of the Directive and therefore had no bearing on Respondent’s alleged violation of A.R.S. § 32-1154(A)(3). Complaint Item 3, as stated by the Investigator, actually involved removal of an electrical conduit, which Respondent completed, and not installation or painting of pipe jacks.

7. Complainant’s additional concern regarding Respondent not paying its subcontractors, whether or not valid, is not the subject of this proceeding.

8. Complainant has also failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to take appropriate corrective action without valid justification. Corrective action was in fact completed, although it was not timely. However, Respondent has shown that there was a valid justification for not timely completing the corrective work by the Directive deadline. Complainant chose the contractors to do the corrective work for which Respondent was financially responsible and the evidence reflects that Respondent’s contracts with these contractors were signed before the Directive deadline but such contractors were not available before the deadline. It is not unreasonable to conclude that had Respondent chosen or dealt directly with its own contractors who might have had more flexibility in starting the corrective work, the corrective action might have been timely. In any case, the Tribunal finds that Respondent was diligent in proceeding to complete the corrective work.

9. Further, it is evident that delay was also caused by the additional time that was required to provide Complainant with an engineer’s report that she requested, a task that was not expressly required by the Directive.

10. Accordingly, Complainant has failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (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 Case No. 2018A-400 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, July 5, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors