ALJDEC decisions subject to certification as final

2020A-01426-CHC-ROC · Registrar of Contractors · 2020-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Walther Schulze

COMPLAINANT,

v.

Wild West Builders, Inc.,

License No. ROC 319899,

RESPONDENT.

No. 2020A-01426-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 6, 2020 and November 2, 2020

APPEARANCES: Complainant Walther Schulze appeared on behalf of himself. No one appeared on behalf of Respondent Wild West Builders, Inc. (Wild West Builders).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Wild West Builders holds license number 319899 issued by the Arizona Registrar of Contractors (Registrar).

Erik Schaefer is the qualifying party for Wild West Builders.

On or about February 7, 2019, Mr. Schulze and Wild West Builders entered into a contract wherein Wild West Builders would build a new house for Mr. Schulze located at 33 CRN 1330 in Greer, AZ (home).

Wild West Builders built the home and Mr. Schulze moved into the home in June of 2019.

On or about March 20, 2020, the Registrar received a complaint from Mr. Schulze alleging poor workmanship on the part of Wild West Builders.

On April 14, 2020, Registrar Investigator Chris Allison conducted a job-site inspection.

On or about April 21, 2020, the Registrar issued a Directive against the license of Wild West Builders. The April 21, 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 May 24, 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:

Compliance Item: 1 - In the spring thaw of 2019 water began seeping in the back wall of the garage/ basement. Water is still leaking into the basement garage.

Investigator’s Observation: At the time of inspection there was evidence of water intrusion in the garage/foundation wall. There was water damaged drywall as well as water on the garage floor. Respondent shall determine the cause of the intrusion and correct in a manner appropriate with professional and industry standards.

PD Leaks in foundation or basement walls.

AT None.

CR Contractor should determine cause of leaks and make necessary repairs.

Because the Complainant insulated and finished the garage/foundation wall after there were signs of water intrusion the Respondent is not responsible for the replacement of the insulation and finishes. The Complainant accepted the surface as suitable to finish knowing there was water intrusion issues

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Wild West Builders failed to correct the items listed in the Directive.

On or about May 29, 2020, the Registrar issued a Citation against Wild West Builder’s license. Through the Citation, the Registrar alleged that Wild West Builders may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

Wild West Builders filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

On July 7, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on August 6, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

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 Arizona Restoration.

At hearing, Mr. Schulze explained that Wild West Builders never installed the proper drainage in the house which caused water to seep out of the back of the home.

Alex Dorst testified on behalf of Mr. Schulze. Mr. Dorst is the President of the Hidden Meadow Ranch Homeowners Association. Mr. Dorst is also the President of the Hidden Meadow Ranch Design Review Committee. The home is a part of Hidden Meadow Ranch.

Mr. Dorst explained that Mr. Schaefer was given the design guidelines regarding the proper construction of a French drain.

Bart Lee testified on behalf of Mr. Schulze. Mr. Lee explained that Mr. Schulze had two homes built and that he performed subcontracting work for Wild West Builders on both homes. Mr. Lee stated that he performed concrete pumping and underground work on the home. Mr. Lee installed utilities at the home. Mr. Lee stated that he installed a French drain line in the second home that is not the subject of the complaint. Mr. Lee stated that he told Mr. Schaefer to install the French drain line in the home. Mr. Lee stated that he never received the order from Wild West Builders to correct the water intrusion problem at the home.

Mr. Schulze stated that Mr. Lee told him that it would cost approximately $16,000 to correct the water intrusion problem.

Investigator Allison testified regarding his investigation of the complaint and issuance of the Directive. Investigator Allison testified that he observed that water intruded into the garage. Investigator Allison explained that Wild West Builders was responsible for correcting the water intrusion problem.

No one appeared on behalf of Wild West Builders at the hearing on November 2, 2020. Wild West Builders did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. Consequently, the matter was convened in the absence of Wild West Builders. Wild West Builders did not present any evidence to defend its license.

Administrative notice is taken of Wild West Builder’s prior License record on November 20, 2020. Such prior License record reflects that Wild West Builder’s License No. 319899 was first issued on May 7, 2018, and is current. Such prior License record also reflects that there were no other open or prior complaints against Wild West Builder’s license.

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. Arizona Administrative 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. section 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. section 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. section 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).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

9. The preponderance of the evidence shows that Wild West Builders did not build the home in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

10. The preponderance of the evidence shows that Wild West Builders violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 319899 of Wild West Builders, Inc. shall be suspended for a period of one calendar day.

It is further recommended that the Registrar require Wild West Builders to pay the sum of $250.00 as a civil penalty.

It is further recommended that if Wild West Builders, Inc. fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Wild West Builders, Inc.’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Wild West Builders, Inc., as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Wild West Builders, Inc. tenders payment of any outstanding prior civil penalty.

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 will be 40 days from the date of that certification.

Done this day, November 20, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors