ALJDEC decisions subject to certification as final

2019A-00882-CHC-ROC · Registrar of Contractors · 2019-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2019, 1:00 P.M. APPEARANCES: Complainants Thomas and Maria Tomczak appeared on their own behalf; Martin Brito, Owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Steeling Arizona & Repair, LLC (Respondent), is the holder of License Numbers 211264, 211263, and 274973 issued by the Registrar of Contractors (Registrar). 2. On or about February 22, 2019, Thomas and Maria Tomczak (Complainants) filed a Complaint against Respondent with the Registrar alleging incomplete work in connection with the construction of a steel building by Respondent for Complainant in Buckeye, Arizona. 3. After an inspection performed by the Registrar on March 20, 2019, the Registrar issued a Directive, dated April 10, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 26, 2019, which was extended by the Registrar to May 12, 2019, as follows: Complaint Item 3: Windows are not properly sealed, leak when it rains and have several dents Investigator’s Observation: The windows do need to be properly sealed Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 4: Property was to be graded upon completion of the building to level out dirt Investigator’s Observation: Grading needs to be completed as per contract Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 5: Garage doors installed are defective by manufacture and need to be replaced Investigator’s Observation: Garage doors need to be replaced with properly operating doors Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 8: 3x3 min landing missing per final inspection Investigator’s Observation: County inspector stated this was required per the addition of the man door. Governing Rule: A.R.S. 32-1154 (A) (2), Plans Specifications and Building Code Violation. Not a workmanship issue that can be inspected and/or evaluated. 4. After performing a Compliance Inspection on June 10, 2019, and observing that all corrective work had not been completed, the Registrar then issued a Citation to Respondent, dated June 28, 2019, 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 issued a Notice of Hearing, setting a hearing for August 29, 2019, at 1:00 P.M. At the hearing, Complainants Thomas and Maria Tomczak testified on their own behalf. Respondent presented the testimony of Martin Brito, owner of Respondent. Chris Fultz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 00001 – 000181 and Respondent’s exhibit numbers 1 - 8 and 11 - 13.[1] 6. The Investigator testified on behalf of the Registrar as to his communications with Complainants and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He testified further that Directive items numbers 4 and 8 had been corrected by Respondent but the remaining Directive item numbers 3 and 5 had not. 7. Complainant Maria Tomczack testified that Respondent failed to correct any of the Directive items. She stated that with respect to Directive item number 3, grading was not properly done leading up to the door. (Complainants’ Exhibit 000160). She further stated that with respect to Directive item number 5, the landing was poorly installed and out of square. (Complainants’ Exhibit No. 000150). 8. Complainant Thomas Tomczack testified that he had some experience in grading and stated that the grading was improper because he could not drive into the garage. 9. Martin Brito testified on behalf of the Respondent that he did not contest Directive items numbers 3 and 5. He stated that window repairs were attempted but then Complainant refused him access to do the repairs, but conceded this refusal came after the May 12, 2019, Directive deadline. 10. Vince Merloni testified on behalf of the Respondent that he performed the grading and that it was done per code as it sloped away from the building. He said it was not graded at entrance because typically gravel or something is placed at entrance. 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 acts: …

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. 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)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. As previously stated, Respondent did not contest the continuing existence of Directive items numbers 3 and 5. Further, in view of the Investigator’s findings, Complainant failed to establish that Respondent had not adequately corrected Directive item numbers 4 and 8. 7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence was uncontradicted that Respondent did not complete the corrective work and that any refusal of access came after the Directive deadline. 8. Complainant has 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). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Steeling Arizona & Repair, LLC’s License Numbers 211264, 211263, and 274973 are suspended for two days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty. 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, September 18, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s document submissions 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