ALJDEC decisions subject to certification as final

2019A-04228-CHC-ROC · Registrar of Contractors · 2020-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bob Graziano,

COMPLAINANT

Carrara Shade Solutions LLC,

ROC License: ROC 302796,

RESPONDENT

No. 2019A-04228-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 1, 2020

APPEARANCES: Bob Graziano on his own behalf; Kenneth Knight for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On November 29, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 7, 2020 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on April 1, 2020.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation served on Respondent Carrara Shade Solutions LLC on November 4, 2019. Through the Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 302796 issued by ROC. Kenneth Knight is Respondent’s qualifying party.

In October 2018, Complainant Bob Graziano and Respondent entered a contract that called for Respondent to install a patio cover at Mr. Graziano’s house in Payson. The work was started and completed in April 2019.

On or about August 20, 2019, Mr. Graziano filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

ROC investigator Chris Allison conducted a jobsite inspection on September 13, 2019. At that time, Mr. Allison conducted a water test and determined that the patio roof was leaking in several areas.

On September 16, 2019, ROC issued to Respondent a Directive that provides in part:

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: Roof is leaking

Investigator’s Observation: At the time of inspection there were several areas were the roof was leaking. This was determined by doing a water test. Contractor should determine the cause and correct in an appropriate manner.

Governing Rule: ARS 32-1154(A)(3) Namely R4-9-108

The Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. October 4, 2019.

On October 29, 2019, Mr. Allison conducted a compliance jobsite inspection at the house during which he again conducted a water test on the roof. At that time, Mr. Allison found that the roof was still leaking.

On November 4, 2019, ROC issued to Respondent a Citation through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Allison testified that during the water test conducted on October 29, 2019, the patio roof was leaking from several areas including where the roof meets the house, in the middle of the roof, and possibly at the outside edge.

Mr. Graziano testified to the effect that Respondent had tried to repair the roof on as many as five occasions, but had not done so. According to Mr. Graziano, in November 2019, Respondent measured the roof and indicated that it was going to replace the entire roof within two weeks, but that was the last contact he had from Respondent.

Mr. Knight testified as to steps Respondent had taken repair the leaking roof, he acknowledged that there were areas of the roof that needed to be repaired, and he testified as to Respondent’s willingness to make any required repairs. Mr. Knight considered any required repairs to be warranty work.

But Mr. Knight also testified to the effect that he did not believe that all of the leaks were the result of Respondent’s work. In particular he testified about an area with a J-hanger where he had observed dry rot under the shingles that were in place on the previously existing roof. He acknowledged however that the cause of the leak in that area had dumbfounded him.

Mr. Knight explained that during the winter months it was too cold in Payson try to make certain repairs, which would require the application of caulking to the roof.

Mr. Knight also acknowledged that there had been a lack of communication on his part.

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:

*****

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.

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 the roof Respondent installed leaked and that that roof continued to leak after Respondent made repairs as ROC ordered it to do through the Directive it issued to Respondent. Although Mr. Knight testified as to his opinion that not all the leaks were the result of Respondent’s work, he did not present substantial evidence proving that to be the case, and he acknowledged that some of the leaks were Respondent’s responsibility. 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).

Although Mr. Knight testified that it was too cold during the winter to make certain repairs, Respondent presented no substantial evidence that the weather was unsuitable to make these repairs between September 16 and October 3, 2019, which was the time ROC allowed for Respondent to make the required corrections. Consequently, 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 for that failure.

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’s license should be suspended for two days for its violation of section 32-1154(A)(3) and Respondent should be ordered to pay to ROC a civil penalty of $250 for its violation of section 32-1154(A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter, Respondent Carrara Shade Solutions LLC’s license No. 302796 be suspended for two days;

IT IS FURTHER RECOMMENDED that on or before the date of the final Order in this matter, Respondent Carrara Shade Solutions LLC be required to pay to the Registrar of Contractors 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

001

-137160-45720000Done this day, April 20, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000