FINACT2019A-02517-CHC-ROC.pdf

2019A-02517-CHC-ROC · Registrar of Contractors · 2020-02-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Jennifer Muriel Gitlin, Case No. 2019-02517 COMPLAINANT, Docket No. 2019A-02517-CHC-ROC v. Rigid Masonry Inc FINAL ADMINISTRATIVE DECISION License No. ROC 269438, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. MODIFICATION AND WRITTEN JUSTIFICATION In this case, a hearing was held, and the Administrative Law Judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and modifies it for the reasons set forth below. The Administrative Law Judge found that “Respondent’s work did not meet the workmanship standards” in violation of A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(3). ALJ Dec. 5:1-6. The Administrative Law Judge further found that Respondent failed to comply with the Registrar’s directive without a valid justification, in violation of A.R.S. § 32- 1154(A)(22). ALJ Dec. 5:7-9. However, the Administrative Law Judge recommended only that a civil penalty of $250 be assessed against Respondent. ALJ Dec. 5:11-12. Under A.R.S. § 32-1154(E), the Registrar may impose a civil penalty for a licensee’s violation of A.R.S. § 32-1154(A)(22). The statutes do not provide for a civil penalty to be imposed for workmanship violations. Here, because the Administrative Law Judge found that

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Respondent also violated A.R.S. § 32-1154(A)(3), but failed to recommend any discipline for that violation. As set forth in the Citation, if “the administrative law judge determines that any of the charges listed [in the Citation] are supported by a preponderance of the evidence, then Respondent’s licenses(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32- 1154(E) and (F).” Where the administrative law judge finds Respondent violated a statutory provision, especially where the conduct involved poor workmanship and subsequent failure to correct that poor workmanship, suspension is appropriate. Accordingly, Respondent’s license should be suspended for a period of three days for its violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. CONCLUSION AND ORDER On page 5, line 14, add to the Recommended Order: “IT IS ORDERED that, on the effective date of this Order, Respondent’s License No. 269438 is suspended for a period of three days.” IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 The Registrar accepts the remainder of the administrative law judge’s decision, which becomes effective on March 16, 2020. Dated February 5, 2020. By: /s/ Joseph Citelli ______ Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail February 5, 2020 to: Respondent Rigid Masonry Inc 2000 W Apache Trl Apache Junction, AZ 85120 Complainant Jennifer Muriel Gitlin 6398 E Red Bird Lane San Tan Valley, AZ 85140 Copy sent electronically this same date to: Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-02517 / SA

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 1.9.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Muriel Gitlin, No. 2019A-02517-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Rigid Masonry Inc., DECISION ROC License: ROC 269438 RESPONDENT

HEARING: December 20, 2019

APPEARANCES: Jennifer Muriel Gitlin on her own behalf; Travis Matthew Zinner for

Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

1. On November 18, 2019, the Registrar of Contractors (“ROC”) issued a

Notice of Hearing on Contested Case setting the above-captioned matter for hearing on

December 20, 2019 at the Office of Administrative Hearing.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the complaint and citation.1

3. Respondent Rigid Masonry Inc. holds license No. 269438 issued by ROC.

Travis Matthew Zinner is the qualifying party and an officer in the corporation.

4. Complainant Jennifer Muriel Gitlin hired Respondent to build a block wall at her property. 5. On or about May 14, 2019, Ms. Gitlin filed with ROC a complaint against Respondent alleging that Respondent had performed poor work. 6. ROC investigator Paul Smith conducted a jobsite inspection on June 17, 2019. When Respondent started its work, the property had an existing footing and in some areas at least one course of blocks. ROC determined that any issues related to these existing features could not be considered as part of this matter.

Through a clerical error the Notice of Hearing does not show when these were served on Respondent. RECEIVED 1.9.2020 ROC LEGAL

7. At the jobsite inspection, Mr. Zinner acknowledged that corrective work was required and agreed to do so. As such, Mr. Smith did not attempt to identify every area that required correction. 8. ROC issued to Respondent a directive through which it ordered Respondent to correct four deficiencies: complaint Item 1: blocks are loose – in danger of falling; complaint Item 2: broken blocks used in some areas; complaint Item 4: multiple areas not grouted; and complaint Item 6: top course of west wall is not level & leaning. 9. ROC determined that any other alleged workmanship violations listed in Ms. Gitlin’s complaint were unsubstantiated and did not required corrective action. 10. Respondent made repairs to the block wall and on September 30, 2019, Mr. Smith conducted a compliance jobsite inspection.2 11. Mr. Smith’s compliance jobsite inspection notes show that Ms. Gitlin was satisfied that items 1 and 6 had been adequately repaired. Mr. Smith’s notes show that item 2 had been repaired to meet the minimum standards. Mr. Smith concluded that there were still areas without sufficient grout and as such, item 4 had not been remedied. 12. ROC issued to Respondent a citation dated October 4, 2019. Through that CITATION ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections 32- 1154(A)(3) and (A)(22). 13. Through its answer to the citation, Respondent expressed its willingness to complete any additional repairs at the site. At the hearing. Mr. Zinner testified that Respondent was willing to go back to the site and complete any additional repairs. Mr. Zinner also explained that the caps (which Mr. Smith identified as requiring additional repair) typically would require two applications of mortar, but the directive did not allow sufficient time for that. 14. Ms. Gitlin testified as to her overall dissatisfaction with the appearance of the block wall and as to the areas that she believed still did not have sufficient mortar. Mr. Zinner did not attend the compliance inspection because he was caught in traffic, but he called Mr. Smith to let him know that he would not be there. 2 RECEIVED 1.9.2020 ROC LEGAL

15. Ms. Gitlin testified to the effect that she did not want Respondent back on the property because she did not trust Respondent based on her interactions with Mr. Zinner. 16. Ms. Gitlin also expressed a concern that Respondent’s corporation had been dissolved in 2018. Mr. Zinner testified to the effect that ROC was aware of the status of the corporation and that Respondent was working with ROC to transfer the license, but could not do so while a complaint was pending. 17. ROC’s workmanship standards allow for voids of up to one-quarter inch in masonry mortar joints. CONCLUSIONS OF LAW 1. 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. 2. “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). 3. “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). 4. 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

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(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. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. 9. 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. 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.

10. ARIZ. ADMIN. CODE section R4-9-108 provides that “A contractor shall perform all work in a professional and workmanlike manner[,] ” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.” 11. 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). 4 RECEIVED 1.9.2020 ROC LEGAL

12. The preponderance of the evidence shows that Respondent’s work did not meet the workmanship standards because the block wall had loose and broken blocks, there were areas that were not properly grouted, and the top course of the west wall was not level and was leaning. Consequently, the preponderance of the evidence shows that Respondent violated ARIZ. ADMIN. CODE section R4-9-108, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(3). 13. The preponderance of the evidence shows that Respondent violated ARIZ. REV. STAT. section 32-1154(A)(22) because it failed to comply with ROC’s directive without a valid justification. 14. Because Respondent has violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license. 15. Considering the facts and circumstances of this matter, Respondent should be ordered to pay to ROC a civil penalty of $250.00. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors order Respondent Rigid Masonry Inc. to pay to the Registrar a civil penalty of $250.00. 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, January 8, 2020.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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