ALJDEC decisions subject to certification as final

2020A-03414-CHC-ROC · Registrar of Contractors · 2020-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Susanne Costello

COMPLAINANT

Rigid Masonry Inc

License No. ROC 269438,

RESPONDENT

No. 2020A-03414-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 2, 2020

APPEARANCES: Susanne Costello on her own behalf; Travis Zinner for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On November 2, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 2, 2020 at the Office of Administrative Hearings.

The Notice of Hearing shows that Respondent Rigid Masonry Inc. is alleged to have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 269438 issued by ROC. Travis Zinner is Respondent’s owner.

Complainant is Susanne Costello.

In 2018, Respondent built a retaining wall at Complainant’s house.

In 2020, Complainant and George Chasse entered a contract calling for Respondent to add an additional stretch of retaining wall. Mr. Chasse signed the contract. ROC’s records show that Ms. Costello and Mr. Chasse are married.

The contract called for the new wall to be built using “Native” paving blocks. Mr. Zinner choose the Native blocks because his belief is that these were the same blocks used to construct the original wall. The contract for the original wall did not call out the type of blocks that were being used.

Ms. Costello filed with ROC a complaint against Respondent alleging that the product/color of the new construction did not match the product/color of the existing wall.

ROC investigator Dennis Bierma conducted a jobsite inspection on July 31, 2020.

On August 6, 2020, ROC issued to Respondent a Directive that provides in part:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 14, 2020.

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DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Product/color blend of new wall does not match product/color blend of existing wall.”

Investigator’s Observation: Verified: The new wall is visibly clear it is a different color from the existing wall. This color difference has also been verified by the manufacturer of the product. Color should match existing areas as closely as possible.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9- 108: (A) A contractor shall perform work in a professional and workmanlike manner.

Respondent did not comply with ROC’s Directive.

ROC issued to Respondent a Citation dated September 23, 2020 through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Complainant’s exhibit 6 is a photograph showing the old wall to the left of steps leading to the pool, and the new wall to the right.

Native blocks are not all one color, but rather consist of a mix of colors. See Complainant’s exhibit 10 that shows a sample of Native blocks and one of Territorial blocks.

Mr. Bierma testified that even though the contract calls for Native blocks, Respondent had committed a workmanship violation because the color of the new wall does not match the old wall, and that Respondent should have informed Ms. Costello if he knew that the walls would not match.

The parties’ contract shows that block colors may vary.

Ms. Costello and Mr. Chasse were both present when the new wall was constructed, but Ms. Costello did not observe the work being performed. After the wall was complete, she told Respondent’s employee that the color of the new wall did not match the old wall. Mr. Zinner came to the site and explained his position that these were the same blocks, but the old blocks were showing the effects of aging.

Mr. Chasse observed the construction, including installation of at least one course of blocks. He testified that he was watching only for the mechanical aspects of the construction, and to the effect that he was not observing the color of the blocks.

Mr. Chasse testified that he was not qualified or able to determine issues related to color, because he is not an expert on color.

Mr. Chasse acknowledged that he signed the contract that specifies Native blocks, but he added that he did not know what Native meant when he signed the contract.

Ms. Costello testified that she too was unaware what Native meant.

Ms. Costello and Mr. Chasse both testified to the effect that they had expected the new wall to match the existing wall in all respects including color. Ms. Costello testified that this can be seen because she sent Respondent an email showing that they wanted the new wall to be “at the same height as cool deck and extend to pool step. Kind of mirror image existing wall.”

Ms. Costello testified that they were relying on Respondent’s expertise when they signed the contract.

Mr. Zinner confirmed that he chose Native block because that is what Respondent used to build the original wall. He added that the color of block will vary between lots, which information is in the contract.

Mr. Zinner testified to the effect that in this case there is additional color variation because the color of the existing wall had faded due to sun, efflorescence, and the chemicals used at the pool.

Mr. Zinner’s opinion was to the effect that the individual blocks on the left side of the photograph in Complainant’s exhibit 6 vary in color.

Ms. Costello sent the block maker a photograph that showed the old wall and the new wall, asking if these were the same blocks. She received a response showing that “One side looks like Territorial and the other looks like Native.”

The representative from the block maker was of the opinion that the new blocks would not fade or weather to match the old blocks, but this opinion is based on his belief that there they were not the same style to begin with.

Ms. Costello purchased a sample Territorial block.

Ms. Costello’s exhibit 8 at pages 3 and 4 is two photographs. Page 3 shows Ms. Costello’s sample on top of the new wall and page 4 the sample on top of the old wall. Ms. Costello was of the opinion that this proves that the old wall was made with Territorial blocks.

But this evidence is not persuasive because the sample block looks quite a bit different in the two photographs, in that it is substantially lighter in the photograph on page 3.

Ms. Costello acknowledged that the lighting would affect the appearance of a given block in different photographs.

Both parties stated that they had photographs of the old wall at the time it was built, but neither party offered these as exhibits.

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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) 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 parties’ contract calls for Native blocks to be used and that is what was used. Mr. Zinner provided credible testimony that Native blocks were used on the original wall and that the color variation between the old wall and new wall was due to the effects of the sun, efflorescence and pool chemicals on the old blocks. Ms. Costello’s exhibit 6 shows that the blocks in the old wall are of various colors as are Native blocks, whereas Territorial blocks appear to be uniform in color based on her exhibit 10.

Ms. Costello’s photographs showing the sample block on the old wall and the new wall is of no substantial probative value because that block itself does not appear to be the same color in each photograph. The information from the block maker is of limited probative value because he was looking at a photograph that may or may not have accurately shown the color of the two walls.

Ms. Costello’s assertion that they were relying on Respondent’s expertise is not persuasive because one need not have the skills or expertise of a licensed contractor in choosing the color of blocks. Moreover, Ms. Costello and Mr. Chasse were present when the blocks and Mr. Chasse watched as blocks were being laid.

Under these facts and circumstances, it would be neither fair nor just to conclude that Respondent committed a workmanship violation. It has not been proven that Respondent violated Ariz. Admin. Code section R4-9-108 or Ariz. Rev. Stat. section 32-1154(A)(3).

Although Respondent did not comply with ROC’s Directive within the time ordered, its failure to do so was justified and not a violation of Ariz. Rev. Stat. section 32-1154(A)(22) because Respondent did not commit a workmanship violation as alleged in ROC’s Directive.

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-03414 is dismissed.

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, December 18, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000