ALJDEC decisions subject to certification as final
2020A-04735-CHC-ROC · Registrar of Contractors · 2021-04-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Greg F. Loveless,
COMPLAINANT,
v.
R&R General Contracting LLC,
License No. ROC 326461,
RESPONDENT.
No. 2020A-04735-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 18, 2021
APPEARANCES: Complainant Greg F. Loveless appeared on behalf of himself. Rafael Leyva appeared on behalf of Respondent R&R General Contracting, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about October 1, 2015, Complainant Greg F. Loveless and Respondent R&R General Contracting, LLC (R&R) entered into a contract wherein R&R would build a new home for Mr. Loveless.
2. On May 1, 2019, R&R started work.
3. On October 15, 2019, R&R stopped work.
4. On or about October 6, 2020, the Registrar received a complaint from Mr. Loveless alleging poor workmanship on the part of R&R.
5. On October 27, 2020, Investigator Gregory Johndrow conducted a job-site inspection.
6. On October 30, 2020, Investigator Gregory Johndrow issued a Directive to R&R. The October 30, 2020 Directive provided, in relevant part, as follows:
After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 December 1, 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: “Foundation slab multiple large cracks through new slab in six areas.”
Investigator’s Observation: Verified: conditions described are present.
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.
Complaint Item 4: “Both front exterior door showing 14 inches of light at the bottom doors warped.”
Investigator’s Observation: Verified: although corrective work has been performed, as stated by the complainant. The doors still have visible light at the top and are not properly
sealed.
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.
Complaint Item 5: “Carpets. In all three bedrooms. Carpet pad is not taped or glued down.
Allowing carpet stretch, carpet is now loose...”
Investigator’s Observation: Verified: Conditions described are present.
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.
Complaint Item 6: “Main living room and hallway. 25 cracked floor tiles”
Investigator’s Observation: Verified: Conditions described are present.
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.
Complaint Item 7a: “...paint is still incorrect color”
Investigator’s Observation: Verified: Paint used on the ceiling in areas where corrective work was performed in the living room does not match the existing color.
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.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1a: “...Causing heaving and water intrusion and mild gases along with possible radon gas intrusion”.
Investigator’s Observation: Unverified: Relating to this complaint item: There is not sufficient evidence to verify the allegations.
Governing Rule: N/A
Complaint Item 1b: “Undermined footers. Poor concrete mixture. Inadequate soil prep.”
Investigator’s Observation: Unverified: Relating to this complaint item: There is not
sufficient evidence to verify the allegations.
Governing Rule: N/A
Complaint Item 2: “Both motion lights exterior not working.”
Investigator’s Observation: Unverified: complainant stated item has been corrected.
Governing Rule: N/A
Complaint Item 3: “Kitchen sink. Hall bathroom. Master bathroom. All sinks fell out of countertops.”
Investigator’s Observation: Unverified: complainant stated item has been corrected.
Governing Rule: N/A
Complaint Item 5a: “...carpet pad needs to be replaced along with pad.”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 7: “Multiple cracks in living room ceiling. Cracked and painted...”
Investigator’s Observation: Unverified: Complainant stated the conditions described have been corrected.
Governing Rule: N/A
Complaint Item 8: “Inadequate landscape drainage towards house”
Investigator’s Observation: Unverified: Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship
standards per A.A.C. R4-9-108.
Governing Rule: N/A
Please direct all questions regarding this Directive to the undersigned Investigator.
7. On November 5, 2020, R&R contacted Investigator Johndrow by e-mail to obtain further clarity regarding the scope of Directive. See the Registrar’s administrative record, pg. 73. R&R notified Investigator Johndrow by e-mail that Mr. Loveless wanted complaint items 4 and 5 to be replaced. R&R notified Investigator Johndrow that Mr. Loveless wanted a permanent repair to complaint item 1. See id.
8. On November 6, 2020, Mr. Loveless notified R&R by e-mail that it was required to hire a foundation support company to correct complaint item 1. See the Registrar’s Administrative record, pg. 81. R&R responded that a foundation support company was not needed because R&R was only required to fix the cracks. See id.
9. On November 6, 2020, Mr. Loveless notified R&R by e-mail that the large seal did not work on the doors and that R&R would have to replace the door, “no excuses.” See the Registrar’s Administrative record, pg. 81. R&R responded that it would put in a new seal. See id.
10. On November 16, 2020, Mr. Loveless notified R&R that all work was to be performed on Saturday, November 21, 2020 or Saturday, November 28, 2020. See the Registrar’s Administrative record, pg. 81. Mr. Loveless told R& R by e-mail that work would start at 9:00 a.m. See id.
11. R&R did not correct the items listed in the Directive by the due date.
12. On or about December 3, 2020, the Registrar issued a Citation against R&R’s license. Through the Citation, the Registrar alleged that R&R may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. section 32-1154(A)(22).
13. R&R filed a timely answer to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. On February 12, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on March 18, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
16. 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 R&R.
17. A hearing was held on March 18, 2021.
18. At hearing, Mr. Loveless testified on behalf of himself. Mr. Leyva testified on behalf of R&R.
19. Mr. Leyva testified that the house was built according to the plans. Mr. Leyva testified to the effect that Mr. Loveless did not accept his method of correcting the items listed in the Directive. Mr. Leyva expressed that he wanted to simply make the repairs directed by the Registrar. Mr. Leyva testified to the effect that Mr. Loveless was always stating what R& R could and could not do. Mr. Leyva stated that he wanted to have a subcontractor perform repairs at 11:000 a.m. but Mr. Leyva insisted that the contractor appear at 9:00 a.m. Mr. Leyva stated that Mr. Loveless was always telling him the types of materials and subcontractors to use.
20. Mr. Loveless asserted that Mr. Leyva wanted to perform work on Thanksgiving and he would not allow him to work on Thanksgiving. Mr. Loveless stated that it was R&R’s responsibility to make sure that his subcontractors appeared for work at the required time.
21. Mr. Loveless alleged that R&R failed to contact him for 14 days during the time period for compliance under the Directive. Mr. Loveless alleged the foundation was improperly installed. Mr. Loveless asserted that there are a lot of problems that could develop in the future due to R&R’s poor work.
22. Administrative notice is taken of R&R’s prior License record on April 2, 2021. Such prior License record reflects that R&R’s License No. 326461 was first issued on October 7, 2019, and is current. Such prior License record also reflects that there were no other open or prior complaints against R&R’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.”
The Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
The preponderance of the evidence presented at hearing shows that
Mr. Loveless would not allow R&R to perform the repairs in the manner that R&R deemed to be appropriate. Instead, the record shows that Mr. Loveless consistently required that R&R replace items that were not required to be replaced under the Directive. Although Mr. Loveless alleged that R&R did not contact him for 14 days during the Directive timeframe, Mr. Loveless limited R&R’s repairs to two days after November 16, 2020. Furthermore, Mr. Loveless demanded that repairs start at 9:00 a.m. The preponderance of the evidence shows that Mr. Loveless denied access to R&R to make the repairs by the method that R&R deemed appropriate. As a result, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108(a), and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be 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.
Done this day, April 2, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors