ALJDEC decisions subject to certification as final

2021A-00273-CHC-ROC · Registrar of Contractors · 2021-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Millicent Nelson,

COMPLAINANT

The Womack Company Inc. Of Arizona

License No. ROC 103234,

RESPONDENT

No. 2021A-00273-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 6, 2021

APPEARANCES: Complainant Millicent Nelson appeared and was represented by Michael Steck. Donald Womack, Owner and Qualifying Party, appeared on behalf of Respondent The Womack Company Inc. of Arizona.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

The Womack Company Inc. of Arizona (Respondent) is the holder of License No. 103234 issued by the Arizona Registrar of Contractors (Registrar).

On or about August, 30, 2019, Millicent Nelson (Complainant) signed a contract with Respondent for an extensive project.

On or about January 19, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg issued a written directive to Respondent that provided 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 Monday 4-5-2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Addendum Compliant Item 1: Wood shingles not painted.

Investigator’s Observation: The respondent is to correct the exposed bare wood fascia at various locations by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, poor work not performed in accordance with professional industry standards.

Addendum Compliant Item 5: Missing stucco at pipes, fuse box bottom, doggie door, south window, south vent and sharp metal edges at garage and northwest weep screed.

Investigator’s Observation: The respondent is to correct the missing stucco at various locations by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, poor work not performed in accordance with professional industry standards.

Addendum Compliant Item 7: Holes in garage sheetrock.

Investigator’s Observation: The respondent is to correct the holes in the garage sheetrock by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, poor work not performed in accordance with professional industry standards.

Addendum Compliant Item 9: Roof tiles at front entry don’t match.

Investigator’s Observation: The respondent is to correct the mismatched concrete roof tiles by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, poor work not performed in accordance with professional industry standards.

Following the issuance of the written directive, Respondent arranged for some work to be performed on the stucco. After the deadline in the directive expired, Investigator Fagerburg was notified that not all of the corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Fagerburg testified that he was later provided with the approved and stamped plans that indicated the attic access was supposed to be hinged and latched. During the jobsite inspection, Investigator Fagerburg observed that the attic access was not hinged and latched. Investigator Fagerburg stated this was the basis of the charged possible violation of A.R.S. § 32-1154(A)(2)(a).

Complainant testified that Respondent made no attempt to correct the majority of the items on the directive after it was issued. Complainant acknowledged the parties had a dispute over the amount paid on the contract, but maintained that Respondent had been paid more than was due under the contract.

Mr. Womack stated that anything that needed to be corrected could be done. Mr. Womack was unable to provide dates that Respondent attempted to correct items on the directive, but was unable or prevented from doing so. Mr. Womack argued that Complainant should have addressed any concerns with him instead of taking them directly to the Registrar. Mr. Womack did not dispute that the items identified in the directive required correction, but did state that some of the holes around pipes in the garage were not a result of his work.

Administrative notice is taken of Respondent’s prior License record on August 9, 2021. Such prior License record reflects that Respondent’s License No. 103234 was first issued on July 15, 1994, and was active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence established that Respondent failed to complete the project in accordance with the agreed upon plans without the consent of the owner in that the attic access was not hinged and latched as indicated in the plans. Therefore, Complainant established that Respondent departed from the plans or specifications in violation of A.R.S. § 32-1154(A)(2)(a).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not complete the corrective work following the directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 103234 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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)(5), 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 will be 40 days from the date of that certification.

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-137160-45720000Done this day, August 25, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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