ALJDEC decisions subject to certification as final

2020A-02081-CHC-ROC · Registrar of Contractors · 2020-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Big Sky Enterprises, LLC

COMPLAINANT,

v.

J and Son Plastering LLC

License No. 183029,

RESPONDENT.

No. 2020A-02081-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2020

APPEARANCES: James M. Cool, Esq. appeared on behalf of Complainant Big Sky Enterprises, LLC. Manuel Gallarzo appeared on behalf of Respondent J and Son Plastering, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent J and Son Plastering LLC (J and Son) holds license number

183029, issued by the Arizona Registrar of Contractors (Registrar).

Manuel Gallarzo is a co-owner of J and Son.

Shaun Robert is the owner of Complainant Big Sky Enterprises, LLC

(Big Sky).

On or about October 13, 2017, Big Sky and J and Son entered into a

residential construction contract wherein J and Son would construct a home located at 2409 W. Hedgehog Place, Phoenix, AZ 85085-4726 (home).

On or about October 16, 2017, J and Son started work.

On or about August 12, 2019, J and Son stopped work.

Mr. Robert moved into the home after it was built. Mr. Robert is the owner

of the home.

On or about April 24, 2020, the Registrar received a complaint from

Mr. Robert alleging poor workmanship on the part of J and Son.

On or about May 18, 2020, Registrar Investigator David Fagerburg

conducted a jobsite inspection.

10. On May 26, 2020, Investigator Fagerburg issued a Directive.

The Directive provided, in relevant part, as followed:

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 Thursday 6-25-2020.

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:

Compliant Item 1: The texture is inconsistent and there are visible lift lines.

Investigator’s Observation: I was able to verify that the stucco texture is not uniform throughout the exterior including the parapet walls on the roof and the previous repairs are visible including lift lines. The respondent is to correct the

inconsistent stucco texture and visible lift lines by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) Poor Work

Compliant Item 2: The finish is splotchy/lumpy.

Investigator’s Observation: I was able to verify that the stucco finish is splotchy and lumpy. The respondent is to correct the splotchy and lumpy stucco finish above all 3

garage doors and the east facing side of the home at the 5 windows by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) Poor Work

Compliant Item 4: There are hairline cracks throughout which have been patched several times

Investigator’s Observation: I was able to verify that there were hairline cracks throughout which have been patched several times. The patches are visible, the color and texture is not consistent or uniform with the surrounding stucco. The respondent is to correct all the previously patched stucco by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) Poor Work

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliant Item 3: Thin sand finish on several walls including parapets, base coat visible

Investigator’s Observation: I was unable to determine if the base coat was visible under the thin sand finish.

Governing Rule: No Action

Compliant Item 5: Previously repaired cracks and new cracks continue to appear.

Investigator’s Observation: I was able to verify that the new hairline cracks are not excessive in any one given area. The new hairline cracks and cracks in the previously repaired areas do not exceed 1/16” in width.

Governing Rule: No Action

J and Son did not correct the items listed in the Directive.

On June 26, 2020, the Registrar issued a Citation that contained

allegations that J and Son may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke J and Son’s license.

J and Son filed a timely appeal to the Citation.

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

evidentiary hearing.

On August 24, 2020, Investigator Fagerburg conducted a pre-hearing

job-site inspection and found that J and Son had not corrected the items listed in the Registrar’s May 26, 2020 Directive.

At hearing, Investigator Fagerburg provided testimony regarding his

investigation of the complaint and issuance of the Directive. Mr. Robert testified on behalf of Big Sky. Mr. Gallarzo testified on behalf of J and Son.

Mr. Robert contended that J and Son performed poor work in the

construction of the home. Mr. Robert explained that J and Son failed to correct the items listed in the Directive.

Mr. Gallarzo asserted that the deficient work was caused by a contractor

who performed work prior to J and Son. Mr. Gallarzo stated that J and Son tried several times to patch the home. Mr. Gallarzo asserted that the cracking was not caused by his material and that J and Son did everything possible to restore the hair line cracks.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

As a general principle in construction, a contractor who performs work on

top of a surface prepared by another accepts the surface. The contractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the subsequent contractor may obtain an explicit warranty disclaimer.

5. The preponderance of the evidence shows that the issues found by Investigator Fagerburg demonstrate that J and Son performed poor work in connection with the stucco work performed at the home. There was insufficient evidence presented to establish that the poor stucco work was caused by a different contractor. Even a previous contractor caused the damage, a contractor accepts the surface prepared by another contractor, and J and Son did not obtain an explicit warranty from Big Sky.

6. The preponderance of the evidence shows that J and Son failed to construct the home in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

7. The preponderance of the evidence shows that Respondent failed to

correct the items listed in 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 J and Son Plastering, LLC, Registrar License: No. 183029, for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent 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 is forty days after the date of that certification.

Done this day, September 15, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors