ALJDEC decisions subject to certification as final
2019A-01018-CHC-ROC · Registrar of Contractors · 2019-12-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Joseph Sweeney,
COMPLAINANT,
v.
Daniel Leigh Warta,
DBA: Dan Warta Construction,
ROC License: ROC 113836
RESPONDENT.
No. 2019A-01018-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 27, 2019 and December 3, 2019
APPEARANCES: Complainant Michael Joseph Sweeney appeared on behalf of himself. Daniel Leigh Warta appeared on behalf of himself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant Michael Sweeney and Respondent Daniel Leigh Warta entered into a new home construction contract.
2. Mr. Warta started work in 2018.
3. Mr. Warta last worked in 2019.
4. On or about March 1, 2019, Mr. Sweeney filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor workmanship on the part of
Mr. Warta.
5. On or about April 1, 2019, ROC Investigator Jim Dimond conducted a job-site inspection.
6. On May 6, 2019, Investigator Dimond issued a Directive.
The Directive provides, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 26, 2019. You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 3: Quarter round missing in the kitchen
Quarter round is missing at the area of the dishwasher.
The respondent is to correct the condition in an appropriate manner.
Complaint Item 4: No base installed behind fridge
The respondent is to install base in the fridge cove in an appropriate manner.
Complaint Item 6: Nuts on J bolts in crawl space not touching sill plate not tightened
The respondent is to correct the condition in an appropriate manner.
Complaint Item 7: Nails holding down drip edge on roof sticking up 1⁄4” where gutters are
installed
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 8: Crack in garage ceiling
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 9/10: Living front window cannot be removed or adjusted as window unit was installed incorrectly per MI window customer service rep
The window does not function as intended is to be corrected by the respondent in an appropriate manner.
Complaint Item 14: Rock on r side of fireplace hearth is loos and grout is cracked or missing due to floor repair
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 16: 2 areas on driveway need re-compaction as they are uneven more than 1/4”
The respondent is to correct the condition in an appropriate manner.
Complaint Item 19: Missing cabinet doors
The respondent is to correct the condition in an appropriate manner.
Complaint Item 21: Tape joint at hall switch is visible
The respondent is to correct the condition in an appropriate manner.
Complaint Item 22: Entry closet doors uneven and left side binds.
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 23: Drywall buggers at front bedroom wall switch
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 24: Crack in drywall at kitchen window
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 25: Cracked corner bead at rear slider
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 26: No support on left side of upper fridge cabinet sagging 3/16”
The respondent is to correct the condition in an appropriate manner
Complaint Item 28: draft at lower left corner of entry door
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter.
Complaint Item 29: Granite bar top on right side of kitchen has visible waves in it due to over buffing this was not a repair as is
The respondent is to correct the condition in an appropriate manner
Complaint Item 31: Drywall texture at r side of bedroom door
The respondent is to correct the condition in an appropriate manner.
Complaint Item 33: fingerprints in garage entry door
The respondent is to correct the condition one time in an appropriate manner.
Homeowner maintenance thereafter
Complaint Item 35: Casing on pantry door not properly nailed
The respondent is to correct the nailing of the casing to ensure the nails are into a solid substrate in an appropriate manner.
Complaint Item 37: Bathroom door jamb out of plumb 5/8” to 3⁄4” in 8’
The respondent is to correct the condition in an appropriate manner.
Complaint Item 30: 1 tile in laundry room not level with adjacent tiles up 1/8”
The respondent is to correct the condition in an appropriate manner.
7. Mr. Warta did not correct the items listed in the Directive by May 26, 2019.
8. On July 2, 2019, Investigator Dimond conducted a job site inspection.
9. Investigator Dimond concluded that Respondent had appropriately corrected Complaint Items 4, 6, 14, 19, 21, 22, 24, 25, 28, 30, 33, 35, and 37. Investigator Dimond concluded that Respondent had not corrected Complaint Items 3, 8, 9/10, 16, 23, 26, 29, and 31.
10. On July 25, 2019, the ROC issued a Citation against Mr. Warta’s license. The Citation contained allegations that Mr. Warta may have violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108;
32-1154(A)(22).
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing commenced on September 27, 2019. During the hearing, the parties requested additional time to resolve the matter.
13. Complainant subsequently informed the tribunal that the parties were unable to resolve the matter and requested that the matter be reset for hearing.
14. Respondent notified the tribunal that the parties had resolved the matter and requested that the hearing be vacated.
15. Because the issues that led to the filing of the complaint were still in dispute, the motion to vacate the hearing was denied and the matter was set for a further hearing for December 3, 2019.
16. Mr. Sweeney testified that Mr. Warta performed poor when he built his new home. Mr. Sweeney asserted that he had given Mr. Warta ample opportunity to correct his work but failed to do so.
17. Mr. Warta testified that he had made all of the repairs specified in the Directive and that Mr. Sweeney signed a document (check off list) stating that Complaint Items 8, 9/10, 16, 23, 26, 29, and 31 were repaired in a satisfactory manner.
18. Mr. Sweeney denied that all of the items on the Directive were corrected by Mr. Warta. Mr. Sweeney testified that he only signed the check off list because he believed that Mr. Warta would repair the work.
19. Investigator Smith explained that Respondent had repaired all of the Complaint Items listed in the Directive with the exception of Complaint Item 3. Investigator Smith explained that the quarter round was replaced but the cabinet at that location had come loose. Investigator Smith stated that Complaint Item #3 was scheduled to be repaired.
20. Investigator Smith also noted that on June 23, 2019, Mr. Sweeney had signed the checkoff list showing that Complaint Items 8, 9/10, 16, 23, 26, 29, and 31 were repaired in a satisfactory manner.
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).
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:
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3. Violation of any rule adopted by the registrar.
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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.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall
perform all work in a professional manner.”
10. The preponderance of the evidence shows that Respondent appropriately corrected all of the Complaint Items listed in the Directive, with the exception of Complaint Item #3.
11. The preponderance of the evidence shows that Respondent’s work with regard to Complaint Item #3 failed to meet minimu,m workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
12. The preponderance of the evidence shows that Respondent failed to
correct Complaint Item #3 listed in the ROC’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Daniel Leigh Warta DBA: Dan Warta Construction
No: 113836 for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
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 will be 40 days from the date of that certification.
Done this day, December 23, 2019.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors