ALJDEC decisions subject to certification as final
2018A-549-CHC-ROC · Registrar of Contractors · 2018-07-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ronald J Boyd,
COMPLAINANT,
v.
G M Plastering LLC,
License No. 224782,
RESPONDENT.
No. 2018A-549-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 18, 2018
APPEARANCES: Ronald J. Boyd on his own behalf; George Ramirez Mendoza for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On June 1, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 18, 2018 at the Office of Administrative Hearing.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Respondent G M Plastering, LLC, holds license No. 224782 issued by ROC. George Ramirez Mendoza is Respondent’s qualifying party.
Through the Citation, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Respondent’s license.
The Citation shows that ROC could not determine whether Respondent has actually committed any of the alleged violations, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that Respondent has violated any statute or rule.
Complainant Ronald J. Boyd hired Respondent to do $5850 worth of stucco work at his house.
On February 5, 2018, Mr. Boyd filed with ROC his complaint against Respondent.
In response to Mr. Boyd’s complaint, ROC Investigator Stephen Lawton conducted a jobsite inspection on March 8, 2018.
On March 26, 2018, ROC issued to Respondent a Directive that required Respondent to correct by appropriate means:
1. Correct stucco texture located at cut expansion joint by Respondent.
2. On south wall of residence shows where wires had been buried in the stucco.
Rcc014 Corrective Work Order1.rtf (in administrative record).
The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Boyd’s complaint were unsubstantiated.
The Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. April 13, 2018.
Mr. Lawton conducted a Compliance Jobsite Inspection on May 10, 2018. Mr. Lawton’s notes show:
1. Correct stucco texture located at cut expansion joint by Respondent. Not complied with at time of inspection. Complainant not satisfied.
2. On south wall of residence shows where wires had been buried in the stucco. [Complied] with and Complainant satisfied.
Rcc104 Compliance Jobsite Inspection Notes1.rtf (in administrative record).
On May 15, 2018, ROC issued to Respondent the Citation.
Mr. Lawton testified that, as of the time of the compliance job-site inspection, in his opinion the texture of the stucco applied at the expansion-joint repair did not match the existing stucco at the house because the texture was too flat.
ROC has no objective measure for determining whether the texture of a stucco repair meets the workmanship standards. Mr. Lawton relied on his own judgment in making his determination that the texture at the expansion joint did not meet the workmanship standards.
A photograph in the administrative record appears the show that the cumulative area of texture at issue is no larger than an 8.5 by 11 sheet of paper.
After the job-site inspection, Respondent returned to Mr. Boyd’s house and made additional repairs to the stucco texture. Mr. Boyd testified that he was not satisfied with the result and as to his opinion that the stucco texture at the repair does not match the existing stucco.
ROC did not conduct a prehearing inspection.
At the hearing, Mr. Boyd testified that he is unwilling to allow Respondent access to his house to do any further retexturing.
Mr. Mendoza testified as to Respondent’s willingness to return to Mr. Boyd’s house to retexture the area at issue. Mr. Mendoza also provided credible testimony that prior to Mr. Boyd filing his complaint with ROC, he had denied Respondent the opportunity to make any requested repairs.
As of the hearing date, there was a suit between the parties pending in justice court.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“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).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
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).
There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified, or financially irresponsible.
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides that
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:
*****
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....
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Respondent buried wires in stucco, which is a violation of the workmanship standards. Ariz. Rev. Stat. § 32-1154(A)(3). Respondent complied with ROC’s Directive and made the required repairs for this item and is not in violation of Ariz. Rev. Stat. section 32-1154(A)(22) regarding this item.
It has not been shown by a preponderance of the evidence that the texture at the repaired expansion joint was a violation of the workmanship standards because ROC has no objective standard regarding stucco retexturing and the evidence presented by Complainant on this issue was vague as to the why Respondent’s work was not satisfactory, and because the photograph in the administrative record does not support Complainant’s position.
Because it has not been proven that the stucco texturing was a violation of the workmanship standards, Respondent has not violated Ariz. Rev. Stat. section 32-1154(A)(22) regarding this item.
Because Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(3), ROC has authority to discipline its license. Considering all the facts of this matter, in particular that Complainant had denied Respondent access to make the required repair until after he filed his complaint, it is recommended that no discipline be imposed against Respondent’s license.
RECOMMENDED ORDER
IT IS ORDERED that on the effective date of the final Order in this matter, the Citation and complaint in Case No. 2018-549 against G M Plastering LLC’s license number 224782 are dismissed.
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 is forty days after the date of that certification.
Done this day, July 31, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors