ALJDEC decisions subject to certification as final

2019A-01219-CHC-ROC · Registrar of Contractors · 2019-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2019, 1:00 P.M. APPEARANCES: Complainants Jaimie Jeffords and Anthony Berger appeared on their own behalf; no appearance was made on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. J W's Companies LLC (Respondent), is the holder of License Number 220046 issued by the Registrar of Contractors (Registrar). 2. On or about March 11, 2019, Jaimie Jeffords and Anthony Berger (Complainants) filed a Complaint against Respondent with the Registrar alleging poor work in connection with construction of a residence by Respondent for Complainant in Phoenix, Arizona. 3. After an inspection performed by the Registrar on April 9, 2019, the Registrar issued a Directive, dated April 19, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 6, 2019, as follows: Complaint Item 1: Multiple failed repairs for roof Investigator’s Observation: Observed water stains inside the bathroom, guest bedroom, hallway and the smoke detector in guest bedroom. Roof needs to be repaired Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 2: failure to repair interior damage from roof leaks in hallway Investigator’s Observation: observed water stains from leaking roof Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 3: failure to repair interior damage from roof leaks in guest bedroom Investigator’s Observation: observed water stains from leaking roof Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 4: failure to repair interior damage from roof leaks to ext walls Investigator’s Observation: observed water stains from leaking roof, it appears to also be affecting the base trim on the exterior wall of the guest bathroom. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 5: failure to repair damaged tile in master bath shower Investigator’s Observation: multiple cracks in the tile and grout failure on the seat in the shower. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 6: failure to repair interior ceiling cracks in multiple rooms Investigator’s Observation: multiple ceiling cracks throughout the home. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 7: excessive stucco cracking Investigator’s Observation: Noticed excessive cracking around every window of the home as well as a very large crack on the north east side of the home by the corner of the patio. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. 4. After being informed that Respondent had failed to fully comply with Directive, the Registrar then issued a Citation to Respondent, dated June 24, 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 15, 2019, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about July 10, 2019, at its address of record. 6. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing. 7. At the hearing, Complainants Jaimie Jeffords and Anthony Berger testified on their own behalf. Chris Fultz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 16.[1] 8. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued. 9. The Investigator testified on behalf of the Registrar as to his communications with Complainant 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 he was informed by Complainant that some workers had shown up to do some work but did not complete any of the Directive items. 10. Complainant Jaimie Jeffords testified that none of the Directive items were fully corrected. She stated that Respondent attempted work on Complaint items 1 and 6 but did not complete the work. 11. Complainant Anthony Berger testified he was present when Respondent attempted repairs but he said Respondent could not locate the source of the leaking. 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…. 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). Complainants have 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. No evidence was presented to rebut Complainants’ evidence of faulty workmanship. 7. A.R.S. § 32-1154(A)(22). Complainants have presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). No evidence was presented to support a finding of a valid justification for failing to take appropriate corrective action. 8. Complainants have 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, J W's Companies LLC’s License Number 220046 is suspended for three business days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 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 4, 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