ALJDEC decisions subject to certification as final

2019A-05258-CHC-ROC · Registrar of Contractors · 2020-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Debbie Camden,

Kenny Camden,

COMPLAINANT

Vito Frederick Austin,

DBA: Vito’s Construction,

License No. 229267,

RESPONDENT

No. 2019A-05258-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 26, 2020

APPEARANCES: Debbie Camden and Kenny Camden on their own behalf; Vito Fredrick Austin for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 17, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 17, 2020 at the Office of Administrative Hearings. The matter was continued and the hearing was conducted on June 26, 2020.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Vito Frederick Austin d.b.a. Vito’s Construction on February 3, 2020.

Respondent holds license number 229267 issued by ROC.

On July 26, 2019, Complainants Debbie Camden and Kenny Camden entered a contract with Respondent that called for Respondent to replace the existing patio cover or awning at their property in a mobile home or RV park located in Parker Arizona. The contract called for a like-for-like replacement of the existing cover. On August 19, 2019, the parties entered a change order that called for a larger cover than the original.

On November 18, 2019, ROC received from Complainants a complaint against Respondent alleging poor work and that Respondent had made threats against them. On the face of their complaint; Complainants wrote that Respondent “cannot set foot on [our] property.”

At the hearing, Ms. Camden testified to the effect that Complainants had barred Respondent from the property because he had made threats. In support of this position, Complainants had entered into evidence text messages between Ms. Camden and Respondent.

ROC assigned Investigator Cliff Corlett to the matter.

Mr. Corlett was of the opinion that the awning should have been built using approved engineering plans, but he acknowledged that the County did not agree with him. The completed construction passed inspection on August 28, 2019.

The record contains no references to any city, county or other codes, or any other information to show that Mr. Corlett, rather than the County is correct about whether stamped engineering plans were required for the project at issue.

Mr. Corlett who conducted a jobsite inspection on November 22, 2019.

In forming his opinions, Mr. Corlett received input from a Mr. Cochran, the qualifying party for ROC license 276137. Mr. Cochran inspected the structure and provided Mr. Corlett twenty-three photocopies of photographs showing what in Mr. Cochran’s opinion were improper construction practices for aluminum awnings.

Although Mr. Corlett noted that Mr. Cochran provided him with a set of plans, Mr. Corlett did not report that Mr. Cochran was of the opinion that the project was required to be built in conformity with those plans.

Mr. Corlett numbered Complainants’ issues from 1 to 18.

On January 11, 2020, ROC issued to Respondent a Directive through which it ordered Respondent to remedy by the appropriate means fourteen items and to report compliance no later than 5:00 p.m. January 24, 2020.

Mr. Corlett acknowledged that the Directive did not comply with the applicable statute because Respondent was not provided at least fifteen days to make any required repairs.

Of the Items ROC ordered Respondent to correct, Items 2, 4, 6, and 14, are duplicative of Item 1, which is addressed below.

In addition, although the Directive shows that ROC alleged Respondent had violated Ariz. Rev. Stat. sections 32-1154(A)(2) (Items 8 and 9) and 32-1155 (Item 13) in its Citation, ROC did not charge Respondent with these violations.

Through its Directive, ROC informed the parties that Items 7, 10, 11, and 12 did not require correction.

In Item 12, Complainants allege that Respondent removed and sold an iron gate that had been at their property. There is no dispute that Respondent removed and kept the gate, but the parties disagree whether Complainants had authorized Respondent to remove and keep the gate to cover the cost of his labor in removing it. Respondent offered to return the gate, but would only do so if Complainants paid for his labor, which offer Complainants declined.

In addition to the dispute about the cost to return the gate, the parties had a dispute as to who was responsible to pay for the cost of obtaining a permit. The evidence shows that these monetary disputes soured what apparently had been largely an amenable relationship.

In Items 7, 10 and 11, Complainants alleged that Respondent sent them threatening texts (7), that he threatened to send Hells Angels to their house (10), and that he threatened to throw rocks through their window (11). In support of these allegations, Complainants had text messages entered into evidence, but those texts do not support Complainants’ allegations.

With regard to Item 7, after the project passed inspection, Respondent sought payment on the balance due.

Through the texts, Ms. Camden acknowledged that Complainants did have a balance due of $2500, but not until the project passed inspection and Complainants were not willing to pay until they received notice from the County that the project had passed. It took over a week between the County’s approval and Complainants’ receipt of that notice. Then Ms. Camden sent a check via certified mail, but it could not be delivered and she was unwilling to make a replacement payment until the check was returned to her, which took another week or so. During this time, the parties were exchanging texts with Respondent requesting/demanding payment. Although Mr. Austin’s texts may have been curt and he was persistent, the texts are not properly seen as threatening.

Included in those texts, was one from Ms. Camden stating that on the first day, the parties had joked about Respondent throwing a rock through the window. She later changed her tone and wrote that Respondent actually had threatened to do so, but this allegation is not proven.

With regard to the allegation that Respondent threatened to send the Hells Angels, at one point, Respondent offered to send an employee or employees to Ms. Camden’s residence to pick up a check for the balance due. About the same time, Respondent sent a text that includes a digital photo of nine men, many in shorts and tennis shoes that Respondent referred to as his “collection agency.” There are no motorcycles in the photo and no club insignia are readily observable, and in short there is no basis on which to conclude that these men are in Hells Angels.

In Item 3, Complainants allege that the “front part of roof was cut (notched).” Mr. Corlett found that this was not a violation, but did opine that the method of attachment to the house fascia is “questionable.” It is not clear, but it appears that attachment to the fascia is duplicative of Item 1. ROC found that this was a violation of Ariz. Rev. Stat. section 32-1154(A)(3), and it ordered Respondent to provide stamped engineering drawings and to reconstruct or replace the awning in conformity with those plans.

In item 8, Complainants alleged that Respondent started work without the required permit and obtained a permit only after the County caught them. Respondent obtained a permit on August 21, 2019, which was two days after the parties’ change order. Respondent’s position is that a permit was not required before they entered that change order because the original contract called for the like-for-like replacement.

Through a text, Respondent asserted that he had discussed the permitting issue with Mr. Camden. This is not consistent with an invoice dated September 17, 2019, in which Respondent provided that Mr. Camden had agreed to pay of the permit in a text.

On August 28, 2019, Ms. Camden sent Respondent text stating that she was surprised that he had obtained a permit and to the effect that he only did so because her father is a contractor and Respondent was trying to protect himself. In later texts, she first raised the allegation that Respondent obtained the permit only after the County required him to do so, but this is not consistent with her first text.

The record contains no references to any city, county or other codes showing that a permit was required before Respondent began work on the original contract’s like-for-like replacement.

Through the Directive ROC asserted that Item 8 represented a violation of Ariz. Rev. Stat. section 32-1154(A)(2), but in its Citation, ROC did not charge Respondent with a violation of subsection (A)(2).

In Item 9, Complainants allege that Respondent demanded to be paid for the labor to get the permit. Respondent and Complainant did have a dispute as to whether Complainant was required to pay for Respondent to obtain the permit.

ROC determined that Item 9 was a monetary dispute that the parties should resolve themselves or through other legal resources. Nevertheless, through the Directive ROC alleged that Respondent had violated Ariz. Rev. Stat. section 32-1154(A)(2). In its Citation, ROC did not charge Respondent with a violation of subsection (A)(2).

In Item 13, Complainants allege that Respondent was not going to honor a warranty on the work. In its Directive, ROC asserts that in most cases, under Ariz. Rev. Stat. section 32-1155, contractors must warranty their work for two years. In its Citation, ROC did not charge Respondent with a violation of Ariz. Rev. Stat. section 32-1155.

In items 5, 15, and 16, Complainants allege violations involving the bollards, although Complainants refer to these as balusters.

In item 5, Complainants assert that the bollards were randomly placed. ROC found that this was a violation of Ariz. Rev. Stat. section 32-1154(A)(3), and it ordered Respondent to relocate the bollards to be evenly spaced.

Though his answer, Mr. Austin provided that Complainants marked the locations for the bollards. On August 22, 2019, after the bollards were placed, Ms. Camden sent a text stating that the work looks great.

In Item 15, Complainants question whether the bollards were properly sized per code. Because the bollards were provided by the property management company, ROC concluded that size was not an issue it would address. ROC however found that this was a violation of Ariz. Rev. Stat. section 32-1154(A)(3), and it again ordered Respondent to relocate the bollards to be evenly spaced.

In Item 16, Complainants alleged that the “holes” for the bollards and awning were not inspected. In its directive, ROC did not directly address the allegation that the holes had not been inspected, but it again found that Respondent had violated Ariz. Rev. Stat. section 32-1154(A)(3), and it ordered Respondent to relocate the bollards to be evenly spaced.

The County approved the construction on August 29, 2019.

With regard to Item 1, relying in part on the information Mr. Cochran provided to Mr. Corlett, ROC’s Directive provided:

Complaint Item 1: Poor workmanship on cutting poles & supports- Jagged edges.

Investigator’s Observation:

This office was contacted by the La Paz County Building Department requesting the ROC’s assistance on the requirements for this type of carport/awning installation. It was the recommendation of this office that typically, this type of structure would require a permit application along with stamped, engineering drawings detailing the methods of construction such as, but not limited to location and spacing of support columns, methods of attachment to columns, method of attachment of the roofing pans, methods of anchoring the structure, fastener schedules such as fastener sizes, types, spacing and locations, etc.

Some of the questionable workmanship practices noted at the ROC onsite meeting:

1. Uneven spacing of short support columns attached to residence fascia.

2. Method of attachment of short support columns is questionable.

3. Short support columns out of plumb.

4. Support columns and awning corners roughly cut leaving raw edges.

5. Support columns (seams) turned different directions.

6. Insufficient number of screws/fasteners at awning fascia corners.

7. Insufficient number of screws/fasteners at awning joint connections.

8. Single strong back / hat channel roof stiffener not located in center of awning span.

9. Different length (mis-matched) bolts used to attach columns to anchors brackets and to roof brackets.

10. Some of these bolts were installed crooked.

11. Some of these bolts were crushing the column material.

12. The full length columns are also installed with the seam facing in different directions.

13. Full length columns are out of plumb.

14. Metal corners of the awning cover were poorly saw cut and are very rough.

15. The paint finish on the columns is scratched and chipped.

16. Column base anchors are improperly installed and pulling loose.

Respondent should provide stamped engineering drawings as to the proper installation methods of this awning.

Respondent should properly reconstruct or replace this awning to conform to engineered drawings.

Governing Rule: A.R.S. §32‐1154‐A. (3)(namely A.A.C. R4‐9‐108 *** Workmanship Standards for Licensed Contractors. Poor work not performed in accordance with professional industry standards.

Mr. Camden testified to the effect that he had constructed the awning using materials taken from a kit. The text messages show however that Respondent was having at least some pieces fabricated.

Regarding the spacing of the poles or supports, Respondent’s answer shows that it had provided more supports than are required, which is why the supports are not evenly spaced. The text messages show that after the awning had been partially constructed, Respondent added additional supports.

Regarding the footings, Respondent’s position is that the project would not have passed inspection if the bolts were not secure.

Respondent did not make the corrections that ROC ordered him to make.

Mr. Camden testified to the effect that Respondent did not attend ROC’s inspection because he was in the hospital and that he could not make the repairs ROC ordered Respondent to make because Complainants had barred him from the property.

There is no evidence to show that after receiving ROC’s Directive Mr. Camden contacted Complainants to request access.

On February 20, 2020, ROC issued to Respondent a Citation through which it alleged that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

ROC’s substantive policy statement 2017.01 sets out the following pertinent information:

Denial of Access

Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.

***

Professionalism

***

Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations.

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.

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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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....

Ariz. Admin. Code section R49108 provides that “A contractor shall perform all work in a professional and workmanlike manner [and a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”

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).

Substantive policy statement means:

[A] written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only....

Ariz. Rev. Stat. § 41-1001(22).

The preponderance of the evidence shows that with respect to Items 1, 2, 3, 4, 6 and 14, Respondent’s work violated Ariz. Admin. Code section R4-19-108, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Because the evidence shows that Complainants set the location of the bollards, it has not been shown that Items 5, 15 or 16 are violations of statute or rule.

Although ROC’s Directive shows that Items 8 and 9 were violations of Ariz. Rev. Stat. section 32-11154(A)(2), and that Item 13 was a violation of section 32-1155, ROC did not cite Respondent for any alleged violation of those sections. It has not been shown that Items 8, 9, or 13 constitute a basis on which to discipline Respondent’s license.

It has not been proven by a preponderance of the evidence that a permit was required for the like-for-like construction called for in the original contract. It has not been proven by a preponderance of the evidence that Respondent obtained a permit only after the County required him to do so.

ROC did not cite Respondent for Items 7, 10, 11 or 12, and it has not been shown that these items constitute a basis on which to discipline Respondent’s license.

It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22), because ROC’s Directive did not comply with the statute and did not provide Respondent a reasonable amount of time to complete the repairs ROC ordered it to make.

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

Although Complainants barred Respondent from their property, it is not appropriate to dismiss this matter based on ROC’s substantive policy statement because Respondent made no effort to contact Complainants to gain access after ROC issued its Directive.

Considering the facts and circumstances of this matter, Respondent’s license should be suspended for two days.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Vito Frederick Austin d.b.a. Vito’s Construction’s license number 229267 for two days.

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.

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-137160-45720000Done this day, August 6, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000