ALJDEC decisions subject to certification as final
2019A-01294-CHC-ROC · Registrar of Contractors · 2020-02-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Pelleco Home Design LLC,
COMPLAINANT
v.
Monzon & Son Builders LLC,
ROC License: 311725,
RESPONDENT
No. 2019A-01294-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Following several continuances, the hearing convened on January 27, 2020.
APPEARANCES: Sam Jafari, President, represented Pelleco Home Design LLC (Complainant). Rogelio Monzon, Member and former Qualifying Party, represented Monzon & Son Builders LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Monzon & Son Builders LLC (Respondent) is the holder of License No. 311725, a KB-2 Dual Residential and Small Commercial license, issued by the Arizona Registrar of Contractors (Registrar) in 2017.
Complainant was the general contractor on a residential home project; the contract date was September 11, 2018. See Exhibit 1.
Complainant hired Respondent to perform some of the work on the project, including “labor only” to install hardwood flooring; the contract date was September 19, 2018. See Exhibit 2. The flooring materials were supplied by the homeowner and/or Complainant.
On March 14, 2019, the Registrar received Complainant’s Complaint regarding Respondent’s hardwood flooring installation, alleging improper installation, insufficient glue, and poor workmanship.
Following a May 2, 2019, jobsite inspection, the Registrar’s Investigator, Dennis Bierma, issued a Directive to Respondent regarding two items that were substantiated as needing corrective action. Investigator Bierma noted that other items alleged in the Complaint but not listed in the Directive were unsubstantiated and did not require corrective actions.
The two Complaint items to be corrected were noted as follows:
Item #2, the hardwood floor has “hollow” sounds, and the corrective action was to correct the hollow spots throughout the floor by appropriate means.
Item #3, in several places the flooring was not installed “to the wall,” and the corrective action was to correct areas of gaps (where flooring was not tight with each plank or did not go to the wall/doorways).
The Directive was issued to require Respondent to perform corrective work and to so notify the Registrar “prior to 5:00 p.m. on June 10, 2019.” At some point, the Directive time period was extended to July 5, 2019. Despite Respondent’s attempts to resolve the issue, through corrective repairs, the corrective work was not done.
When the matter was not resolved through corrective action, Investigator Bierma forwarded the matter to the ROC legal department for citation.
The Registrar issued its Citation on August 14, 2019, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”
On August 26, 2019, Respondent filed its written Answer (Answer) to the Citation. Respondent did not challenge the Directive as to corrective work needing to be done. Therein, Respondent noted that a third party had performed an inspection and recommended that the entire floor be replaced, which caused the homeowners to insist that such replacement would be the only solution.
At some point near the end of the directive period, the homeowners agreed to allow Respondent to perform the corrective work. At that point, because Respondent was “labor only” as to the floor installation, Respondent reached out to Complainant to supply the necessary items for the corrective work and provided a list of material needed. Complainant did not respond and did not supply the necessary items.
The Registrar issued its Notice of Hearing, and after two continuances, the matter convened for hearing. At the hearing, Exhibits A through E were marked and admitted from Complainant while Exhibits 1 through 3 were marked and admitted from Respondent.
At hearing, Registrar’s Assistant Chief of Investigations, Steve Nelson, testified regarding his review and summary of the information contained in background documents, photographs, the Directive, and the Citation; Investigator Bierma was no longer employed at the Registrar at the time of the hearing.
When Mr. Nelson attempted to arrange a pre-hearing inspection, Complainant informed him that the flooring had already been replaced by the homeowner.
At hearing, Mr. Jafari acknowledged that the homeowner, a good and prior customer of Complainant, was not satisfied with anything less than replacement of the entire floor.
Mr. Jafari was also against corrective action by means of glue infusion. Other flooring contractors had inspected the flooring and advised Mr. Jafari that the flooring was beyond repair and needed to be replaced.
Subsequently, after the homeowner filed a complaint with the Registrar against Complainant, in order to resolve that complaint, on August 28, 2019, Mr. Jafari paid the homeowner $19,499.32 for them to replace the flooring. See Exhibit D.
At the hearing, Mr. Jafari indicated that he just wanted the money [from Respondent] that he had paid to the homeowner, threatening to open up more complaints about other projects for which Complainant had hired Respondent and on which Complainant was unsatisfied with Respondent’s work.
At hearing, Respondent noted that, even at the May 2, 2019 jobsite inspection, the homeowner was adamant that they needed to have new flooring installed.
Respondent was not given a chance to perform the corrective work. Respondent further noted that the homeowner only wanted to deal with Complainant on the flooring issues and would not give Respondent the opportunity to come in to make the repairs indicated in the Directive.
At the time of the hearing, Respondent was unaware that the flooring had been replaced.
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that there is only one open complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
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 section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
5. 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.”).
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. 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).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. The hearing record demonstrated that workmanship issues existed as to Respondent’s installation of the flooring. Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
10. While Ariz. Rev. Stat. § 32-1154(A)(22) allows that the Registrar may suspend, revoke, or discipline a contractor’s license for failure to take appropriate corrective action as directed in a Registrar’s Directive, the statue does not permit such when there is valid justification for the inaction. Here, Respondent was not given the opportunity to correct the determined workmanship issues and was unable to perform any corrective repairs due to not being allowed access by the homeowner to make the Directive repairs. The hearing record established that Respondent was prevented from correcting the workmanship issues by both the homeowner and Complainant. Thus, the hearing record established that Respondent had justification for not taking corrective action on the workmanship issues following the written Directive. Therefore, the Administrative Law Judge concludes that Complainant has not demonstrated that Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(22) and Respondent’s license should not be disciplined as to the determined workmanship issues.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that Complainant’s Complaint be dismissed and that no disciplinary action be taken against Respondent’s ROC License No. 311725.
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.
Recommended this date, February 18, 2020.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors