ALJDEC decisions subject to certification as final

2020A-01202-CHC-ROC · Registrar of Contractors · 2020-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Oscar N Garcia,

COMPLAINANT

Green Street Communities Inc.,

License No. ROC 282770,

RESPONDENT

No. 2020A-01202-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 13, 2020

APPEARANCES: Christopher J. Charles, Esq. for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 14, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 9:00 a.m. on August 13, 2020 at the Office of Administrative Hearing.

No representative for Respondent Green Street Green Street Communities Inc. appeared at the scheduled time and the matter was convened in its absence at about 9:18 a.m.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Green Street on June 3, 2020.

Green Street holds license number 282770 issued by ROC; the evidence at hearing showed that the license was suspended. Derek Jarr is an officer in the corporation.

On or about July 2, 2019, Complainant Oscar Noe Garcia and his wife entered a contract to purchase a new home that Green Street had constructed. Escrow closed on August 9, 2019, and Mr. Garcia and his family moved in that day.

On March 9, 2020, Mr. Garcia filed with ROC a complaint against Green Street alleging poor work on Green Street’s part.

There were problems with water collecting on the roof, ponding on the front walkway, and deterioration of the foundation in the garage, which are the subject of this hearing. There were also problems with the gas, plumbing, and doors that Mr. Garcia chose not to include in his ROC complaint.

Prior to filing the complaint, the Garcias sent Green Street ten requests for repair using Green Street’s on-line form, but received no response.

In September 2019, a Green Street representative came to the house in response to an email from the Garcias; the representative promised that things would be fixed, but nothing happened.

The Garcias informed Green Street that they were going to file a complaint with ROC and in October Mr. Jarr came to their house. He assured the Garcias that things would be fixed, but nothing had happened by December 2019, when Mr. Jarr requested that the Garcias give him until January (2020) to complete the repairs, but no work was completed.

On March 9, 2020, Mr. Garcia filed his complaint against Green Street.

ROC assigned Investigator John Smith to Mr. Garcia’s complaint.

On April 29, 2020, Mr. Smith conducted a jobsite inspection. No representative for Green Street appeared at that inspection.

On May 4, 2020, ROC issued to Green Street a Directive that provides in pertinent part:

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

Compliance Item: 4 - Foundation issue on walkway to front door. Water isn't properly draining and sitting water is causing decay of foundation

Investigator’s Observation: I observed paint flaking off the stem wall on the exterior and interior of the garage which is adjacent to the front door. Also I observed ponding on the sidewalk leading to the front door, after 30 minutes post flooding the walkway.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Green Street:

Compliance Item: 1 - Roof - The front shingle valleys have been cut so that water will be directed underneath the valley

Investigator’s Observation: I did not observe the roof. The Complainant acknowledged the allegation is based on the home inspector observation. No issue of leaking, Complainant stated. No safe access to roof provided.

Compliance Item: 2 - Roof - The front shed dormer roof has less than 2" in 12" pitch.

Compliance Item: 3 - Front yard is not draining properly following rainfall & floods & holds water over 7 days

Investigator’s Observation: I did not observe flooding in the front yard. The area pointed out by the Complainant is designed as a[n] engineered water retention area.

Through its Directive, ROC informed Green Street that it was required to notify ROC of its compliance by 5:00 p.m. June 1, 2020.

Through an email dated May 5, 2020, Mr. Jarr informed Mr. Garcia that Green Street had decided to cease operations and terminate its ROC license.

Green Street did not perform any of the corrective work ROC ordered it to complete and letters ROC sent to Green Street were returned to ROC.

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

At the hearing, Steve Nelsen, ROC’s assistant chief of investigations confirmed that Item four was a workmanship violation and he testified to the effect that it encompassed two issues requiring correction: the flaking paint on the stem wall (likely the result of poor drainage around the front walkway) and ponding on the walkway.

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 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.”

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 Green Street violated Ariz. Admin. Code section R4-19-108 in that paint is flaking from the stem wall, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Green Street violated Ariz. Rev. Stat. section 32-1154(A)(22) because it did not even attempt to comply with ROC’s Directive.

Because Green Street has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.

That Green Street did not appear at the hearing shows a lack of respect for the other parties and a lack of respect for ROC’s authority.

Green Street’s failure to honor its promises to repair the deficiencies at the Garcias’ house strongly suggests that Mr. Jarr and Green Street are unscrupulous.

Considering that Green Street’s license is already suspended and its failure to appear at the hearing, Green Street’s license should be revoked.

Considering Green Street’s failure to respond to ROC’s Directive, the maximum civil penalty of $500.00 should be assessed against it.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractor revoke Green Street Communities Inc.’s license number 282770;

IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against Green Street Communities Inc. a civil penalty of $500.00.

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.

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-137160-45720000Done this day, August 28, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000