ALJDEC decisions subject to certification as final
2019A-06246-CHC-ROC · Registrar of Contractors · 2020-05-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Allen Myrmel,
COMPLAINANT,
v.
Andrew Phillip Liberty,
DBA: Liberty Construction,
License No. 318427,
RESPONDENT.
No. 2019A-06246-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 24, 2020.
APPEARANCES: Complainant James Allen Myrmel appeared on behalf of himself. Respondent Andrew Phillip Liberty appeared on behalf of himself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about December 11, 2019, Complainant James Allen Myrmel and Respondent Andrew Phillip Liberty DBA: Liberty Construction (Liberty) entered into a contract wherein Liberty would repair water damage to Myrmel’s wall and ceiling for $540.
2. On or about December 12, 2019, Liberty began work under the contract.
3. On or about December 18, 2019, Liberty stopped work.
4. On or about December 18, 2019, the Myrmel filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Liberty.
5. On or about January 23, 2020, Registrar Investigator Mike Nation conducted a job-site inspection.
6. On January 30, 2020, the Registrar issued a Directive to Liberty. The January 30, 2020 Directive provided, in relevant part, as follows:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 17, 2020.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Drywall repair on wall was not completed satisfactory. Drywall on wall is bubbled and chipping.
Investigator’s Observation: Verified. I observed the area of drywall repair on the wall, as pointed out by the Complainant. The drywall texture was visibly bubbled and chipping and had a small crack. In addition, the surface was springy to the touch when pressed in. There were no visible water statins. This should be corrected by the appropriate means.
Workmanship Standard: Readily visible flat areas in textured finish.
Contractor Responsibility: Contractor should make necessary repairs.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 2: There are visable markings on areas he repaired on ceiling. Texture applied to ceiling is visibly different than areas not repaired.
Investigator’s Observation: Verified. I observed the oval-shaped and the rectangular-shaped drywall repairs to be visibly different as if they were not textured to match the rest of the ceiling and/or due to the “flashing” effect. This should be corrected by the appropriate means.
Workmanship Standard: Readily visible flat areas in textured finish.
Contractor Responsibility: Contractor should make necessary repairs.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 3: Paint does not match.
Investigator’s Observation: Verified. I observed two vertical streaks of white paint {on both sides of the vanity mirror} to be lighter in color and did not match the existing color on the wall as if the wrong colored white paint was applied. This should be corrected by the appropriate means.
Workmanship Standard: Painting required as corollary repair because of other work does not match surrounding paint.
Contractor Responsibility: Contractor should refinish to match surrounding areas as closely as possible.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
7. Liberty failed to correct the items listed in the Directive by the due date.
8. On February 24, 2020, the Registrar issued a Citation against Liberty’s license . Through the Citation, the Registrar alleged that Liberty may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108); Ariz. Rev. Stat. sections 32- 1154(A)(22).
9. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Liberty.
10. Liberty filed at timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
12. On March 24, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on April 24, 2020, by the OAH.
13. A hearing was held on April 24, 2020.
14. Myrmel testified on behalf of himself. Liberty testified on behalf of himself. Investigator Mike Nation testified regarding his investigation of the complaint and issuance of the Directive.
15. Myrmel testified that Liberty performed poor work under the contract. Liberty argued that he did not have to hold a contractor’s license to repair the water damage for $540. Liberty also stated that Myrmel could find relief through the bond company.
16. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on May 14, 2020, Liberty’s license was first issued on February 20, 2020, and is active. Such prior License record also shows that there is only one open complaint against Liberty’s license. Liberty’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. 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)
The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
4. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 318427 issued to Andrew Phillip Liberty,
DBA: Liberty Construction for one calendar day.
Done this day, May 14, 2020.
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, May 14, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors