ALJDEC decisions subject to certification as final

2019A-02517-CHC-ROC · Registrar of Contractors · 2020-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Muriel Gitlin,

COMPLAINANT

Rigid Masonry Inc.,

ROC License: ROC 269438

RESPONDENT

No. 2019A-02517-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

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

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.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation.

Respondent Rigid Masonry Inc. holds license No. 269438 issued by ROC. Travis Matthew Zinner is the qualifying party and an officer in the corporation.

Complainant Jennifer Muriel Gitlin hired Respondent to build a block wall at her property.

On or about May 14, 2019, Ms. Gitlin filed with ROC a complaint against Respondent alleging that Respondent had performed poor work.

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.

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.

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.

ROC determined that any other alleged workmanship violations listed in Ms. Gitlin’s complaint were unsubstantiated and did not required corrective action.

Respondent made repairs to the block wall and on September 30, 2019, Mr. Smith conducted a compliance jobsite inspection.

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.

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).

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.

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.

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.

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.

ROC’s workmanship standards allow for voids of up to one-quarter inch in masonry mortar joints.

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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 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.”

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).

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).

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.

Because Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license.

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.

-54864001

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-137160-45720000Done this day, January 8, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000