ALJDEC decisions subject to certification as final
2018A-494-CHC-ROC · Registrar of Contractors · 2018-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Wesley Roland Davis,
COMPLAINANT,
v.
F and G Plastering Inc,
License No: 202423
RESPONDENT.
No. 2018A-494-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 3, 2018, 1:00 P.M.
APPEARANCES: Complainant Wesley Davis appeared on his own behalf; Joseph W. Charles, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. F and G Plastering, Inc., (Respondent), is the holder of License Number 202423 issued by the Registrar of Contractors (Registrar).
2. On or about February 1, 2018, Wesley Davis (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and abandonment in connection with the stuccoing of residential property in Phoenix, Arizona.
3. Upon completion of an inspection performed by the Registrar on February 14, 2018, the Registrar issued a Directive, dated February 16, 2018, requiring Respondent to correct the alleged deficiency in Respondent’s work by March 5, 2018, as follows
Complaint Item 9: Addendum: missing weep screed at rear patio wall and column.
Directive: Areas of the home, notably the rear patio and columns, are missing weep screeds. Weep screeds are required at all exterior wall stucco applications per ROC workmanship standards and building code. Respondent shall correct by appropriate means.
4. When the Registrar was informed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated March 6, 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 May 3, 2018, at 1:00 P.M. At the hearing, Complainant Wesley Davis testified on his own behalf; Felix Sanchez, President, testified on behalf of Respondent. Matt Gunstra, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 4 and Respondent’s exhibit numbers 1 - 11.
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. He specifically testified that weep screed was missing on 2 x 2 column and along 10 feet at the back of the residence under the porch. He stated he observed a framing or foundation issue that would prevent the weep screed from being properly installed and that would prevent Respondent from doing its work pursuant to standards. The Investigator further testified that the existing wall would need to be modified either by being moved or padding it out to accommodate the installation of the missing weep screed.
7. The Investigator further stated that it was typically a general contractor’s obligation to inspect the previous subcontractor’s work to determine whether the next subcontractor, in this case Respondent, could proceed with stuccoing. He stated that Complainant, the owner, acted as general contractor on the job. He stated further that the subcontractor should inspect the project before its work commences to inform the general contractor or owner of any reasons why the job cannot be completed or will unavoidably deviate from workmanship standards.
8. Complainant testified Respondent made an agreement with Complainant’s friend, Jim, based on a proposal submitted by Respondent. He stated that Jim was very knowledgeable in construction and that Jim was acting as his mentor on the project. He further testified that all he wanted from this case was to be left alone by Respondent, who was apparently continuing to contact Complainant about outstanding amounts allegedly due. He further stated that he personally was not made aware of the alleged foundation issue.
9. Felix Sanchez testified on behalf of Respondent that he made the original agreement to do stuccoing work with Complainant’s representative and friend, Jim, and that he took direction from Jim regarding the work. He stated he told Jim at the beginning of his work that Respondent would be unable to install weep screed in certain portions of the house because previously installed framing and concrete were not straight. He testified that he pointed out the foundation issue to Jim at the very beginning of the project and told Jim that it could not be laminated because it was not straight and that the job would not pass inspection. He stated Jim told him to go ahead and cut the laminate and make it as straight as possible and not to be concerned about the inspector. Mr. Sanchez further stated the existing deficiency could not have corrected with drywall and that the foundation concrete would need to be cut, a task for which he was not licensed.
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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 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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
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 failed to present 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 was uncontradicted that Respondent made Jim, Complainant’s representative, aware of the foundation issue before Respondent commenced work and that Respondent was prevented from installing weep screed where the foundation issue existed. The evidence was further uncontradicted that Complainant’s representative told Respondent to proceed with the work in any event and to just try to make it as straight as possible. Complainant’s argument that Respondent could have added additional styrofoam to pad out the wall rather than remove concrete is unpersuasive. The evidence reflects that it was never contemplated between the parties that Respondent was obligated to do anything with respect to existing deficiencies caused by other subcontractors other than to bring them to the attention of Complainant.
7. 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. The evidence presented supports a finding that a valid justification existed for Respondent not proceeding with corrective action. The evidence reflects that the repair would have involved removal of concrete for which Respondent did not have a license and which was not part of the scope of the work.
8. Therefore, Complainant has not established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
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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-494 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, May 23, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors