ALJDEC decisions subject to certification as final
2021A-01436-CHC-ROC · Registrar of Contractors · 2021-08-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Manuel De Jesus Mayorga,
COMPLAINANT
v.
M G Commercial & Residential Construction Inc.
License No. ROC 243756,
RESPONDENT
No. 2021A-01436-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: August 23, 2021
APPEARANCES: Manuel de Jesus Mayorga on his own behalf; Miguel Angel Gamez Garcia for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On July 20, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 23, 2021 at the Office of Administrative Hearing.
Through its Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent M G Commercial & Residential Construction Inc. holds license No. 243756 issued by ROC. Miguel Angel Gamez Garcia is Respondent’s qualifying party and an officer in the corporation.
Complainant is Manuel de Jesus Mayorga.
Complainant and his wife purchased a home on East Edwin Place in Yuma, with the close of escrow occurring on December 18, 2020.
On April 5, 2021 Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.
ROC investigator Ruben Perez Sr. conducted a jobsite inspection on April 21, 2021.
On April 23, 2021, ROC issued to Respondent a Directive that provided in part:
**** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 25, 2021.
***
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item 1: Broken tile in the kitchen and dinning area, numerous cracks between grouts
Investigator’s Observation: Two tile pieces in kitchen were observed broken and one tile piece in dining room was observed cracked. One tile piece in dining room was replaced with different color grout. Several locations in living room, kitchen and hallway floor were observed with missing grout. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 2: Quartz in the kitchen Island not installed properly
Investigator’s Observation: Kitchen island countertop was observed loose/unattached to cabinet. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 3: Microwave exhaust vent not pulling air
Investigator’s Observation: The over-the-range microwave exhaust fan was observed to not be working properly. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 4: One of the outlets installed on the roof for Christmas lights is missing wiring
Investigator’s Observation: An electrical outlet under front fascia was observed unfinished/missing receptacle and cover. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 5: Noticeable cracked stucco on outside walls
Investigator’s Observation: Back wall was observed with excessive cracks on stucco specifically around rear doors, below kitchen sink window and area between windows. Respondent to determine cause and correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 7: Uneven closet doors, not closing properly
Investigator’s Observation: Closet doors in three bedrooms on East side of house were observed with significant gaps at top corner. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 8: Inconsistent wall texture and paint throughout the house
Investigator’s Observation: Several interior walls throughout house were observed with blemishes including around kitchen sink window (corners), inside pantry, arch corners near front door and hallways. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 9B: Loose drywall tape in the entryway
Investigator’s Observation: Wall in living room near front door was observed with a crack on drywall. Portico ceiling at front door was observed with a crack on drywall. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 11B: Kitchen cabinets damaged
Investigator’s Observation: Upper kitchen cabinets were observed to have unfinished areas under cabinets. Several unfilled holes in multiple cabinets were noted. Laundry room cabinet doors were observed to not close properly. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
Compliance Item 13: There is a hole in the frame of the garage door
Investigator’s Observation: The bottom right corner of the garage door was observed to have opening at foundation. Respondent to correct by appropriate means.
Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108
ROC determined that the other items in Complainant’s complaint did not require correction.
On June 8, 2021, Mr. Perez conducted a compliance jobsite inspection. Mr. Perez’s opinion was that none of the items identified in ROC’s Directive had been corrected.
ROC issued to Respondent a Citation dated June 10, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
On August 19, 2021, Mr. Perez conducted a prehearing inspection. Mr. Perez provided credible testimony that as of August 19, 2021 all the items identified in ROC’s Directive had been properly repaired with the exception of item 8.
Mr. Perez also testified that there were additional cracked tiles in the house, but these were not the subject of the complaint at issue. Mr. Perez was not certain as to the cause of the additional cracking, but he was of the opinion that the tiles may have been “hollow.”
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:
*****
3. Violation of any rule adopted by the registrar.
*****
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.”
The scope of the hearing is limited to issues that are properly noticed. Ariz. Rev. Stat. § 41-1092.07(F)(6). Consequently, any alleged workmanship violations that were not raised in the complaint and subject to ROC’s inspection are beyond the scope of this hearing. See also Ariz. Rev. Stat. § 32-1155(D)(1)(requiring notice and an opportunity to inspect).
The preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3). The preponderance of the evidence also shows that Respondent has corrected all deficiencies identified in the complaint except for item 8.
The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).
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).
Considering the facts and circumstances of this matter, it is appropriate for Respondent’s license to be suspended for one day and for Respondent to be assessed a civil penalty of $250 for its violation of section 32-1154(A)(22).
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent M G Commercial & Residential Construction Inc.’s license No. 243756 for one day and that the Registrar impose against Respondent a civil penalty of $250.
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, August 26, 2021.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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