ALJDEC decisions subject to certification as final

2021A-02941-CHC-ROC · Registrar of Contractors · 2021-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Duncan ,

COMPLAINANT

American Mustang Landscaping LLC

License No. ROC 305375,

RESPONDENT

No. 2021A-02941-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 10, 2021

APPEARANCES: Jennifer Duncan appeared on her own behalf; Victor Mora appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 6, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 10, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent American Mustang Landscaping LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), (A)(16), and (A)(22).

Victor Mora, Respondent’s owner and qualifying party appeared and testified for Respondent.

Complainant Jennifer Duncan appeared and testified on her own behalf.

ROC investigator David Fagerburg also testified.

Respondent held a CR-21 license, number 305375 that was voluntarily cancelled on June 8, 2020.

Mr. Mora is the qualifying party for Mora Construction LLC and a member of that LLC. Mora Construction holds license number 327126, which is a KB-2 license issued on December 17, 2019.

Complainant had a contract with LaBlonde Construction under which LaBlonde was constructing a home for Complainant.

Respondent was one of LaBlonde’s subcontractors and performed work at Complainant’s home.

Complainant did not have a contract with Respondent and did not make any payments to Respondent, but rather Complainant paid LaBlonde for Respondent’s work.

Complainant’s contract with LaBlonde is not active because LaBlonde terminated it, and Ms. Duncan effectively acknowledged that she and LaBlonde had a dispute as to money.

Complainant received a temporary certificate of occupancy in February 2020. Ms. Duncan testified that Scottsdale will not issue a final certificate of occupancy because of deficiencies with the fireplace and a retaining wall, which work was performed by Respondent.

In addition to the complaint at issue in this matter, Complainant has filed three complaints against LaBlonde and a complaint against Mora Construction; these complaints alleged many of the same deficiencies as alleged in this matter. Mr. Fagerburg did not have knowledge of the outcomes of those other complaints and those outcomes are not in the record.

On or about June 27, 2021, Complainant filed her complaint against Respondent in which she alleged poor work and performing work outside the scope of the license.

On July 29, 2021, ROC’s Mr. Fagerburg conducted a jobsite inspection.

On August 9, 2021, 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 Friday 9-27-2021.

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DIRECTIVE REQUIREMENTS

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

Compliant Item 2: Fireplace venting improperly installed. Venting touches combustibles, including wooden trusses and insulation. Venting not appropriate size.

Investigator’s Observation: The respondent is to correct the undersized fireplace venting at the great room that is improperly installed touching combustibles, including wooden trusses and insulation, correct the fireplace venting in the master bedroom that touches combustibles, including wooden trusses and insulation and pass final inspection for both fireplaces by the City of Scottsdale by appropriate means.

Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards, A.R.S. § 32-1154 (A) (14) (Wrong Name)

Compliant Item 3: Kitchen hood improperly installed

Investigator’s Observation: The respondent is to determine cause and correct the kitchen exhaust hood that is improperly installed by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards, ARS §32-1154 (A) (16) (Out of Scope)

Compliant Item 4: Retaining walls lack proper inspections required by the City of Scottsdale and remain incomplete.

Investigator’s Observation: Based on the invoices provided, the work described is within the scope of ROC license 327176 KB-2 Dual Residential and Small Commercial issued 12-18-2019 and was invoiced to the General Contractor under the wrong business name. The respondent is to satisfy the City of Scottsdale special inspection requirements for all the retaining walls by appropriate means.

Through its Directive, ROC informed the parties that the other items raised in Complainant’s complaint did not require correction or action on Respondent’s part. ROC did allege however that in performing the work identified in these other items, Respondent had contracted beyond the scope of its license and had contracted under the wrong business name.

Mr. Fagerburg provided credible testimony showing that Respondent had contracted beyond the scope of its license.

On August 9, 2021, ROC issued to Respondent an Amended Directive through which it changed the date by which Respondent was required to show that it had complied with ROC’s Directive from September 27, 2021 to October 27, 2021

ROC issued to Respondent a Citation dated September 2, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), (A)(16), and (A)(22).

Mr. Fagerburg conducted a prehearing inspection on November 9, 2021, at which time none of the items ROC ordered Respondent to correct had been corrected.

Mr. Fagerburg’s opinion was that because Respondent had voluntarily cancelled its license before ROC issued its Directive, the only way that Respondent could have complied with the Directive would have been to enter a financial settlement with Complainant.

Ms. Duncan’s opinion is that Mora Construction could have performed the corrective work that ROC ordered Respondent to complete because Mr. Mora was the qualifying party for both entities and the work falls within the scope of Mora’s license.

Mr. Mora testified that Respondent could not correct the work because it is not allowed to contract or subcontract because its license is cancelled. Respondent has been out of business since 2019, and Mora and Respondent are two different companies.

According to Mr. Mora, he has worked with LaBlonde for more than 10 years, LaBlonde tells Respondent what to do, LaBlonde deals with the inspections, and he does not independently verify that these inspections have been passed.

The fireplace venting

Mr. Fagerburg testified to the effect that the fireplace venting installed by Respondent was not in compliance with the 2015 IBC at section R1003.18 that requires the fireplace venting to be two inches from any combustible material.

Complainant had entered into evidence reports from Arizona Fireplaces and from Arizona Gas Products that also show the venting is too close to combustible material and that point to other potential deficiencies determining the extent of which would require further investigation.

Neither report shows that the respective entities are licensed contractors or whether the authors have the requisite qualifications to render a competent opinion.

Mr. Mora testified that Scottsdale had approved the fireplace installation, which was seen by the fact that the drywall was installed at the house.

Mr. Mora professed a lack of knowledge or recall of the standards and requirements for the fireplace venting, and testified to the effect that he did what LaBlonde told him to do, that Respondent had installed the venting provided by LaBlonde, and that LaBlonde had hired engineers and architects who knew what was required.

Nevertheless, Mr. Mora also testified that the chimney venting or flue pipes had a pipe within a pipe, with the outer pipe two inches from the inner pipe, which then provided the required two-inch separation from any combustible material.

Respondent offered no evidence to corroborate this testimony and Complainant’s Exhibit 11-0, an excerpt from the applicable IBC section does not show that such a system provides an exception to the two-inch requirement.

The kitchen vent hood

Respondent installed the kitchen hood at Complainant’s home.

Mr. Fagerburg testified that the kitchen vent sounded strained and rattled when turned on, which is a violation of the workmanship standards.

Complainant had entered into evidence the installation instructions that show undersized vents and improperly installed vents both can cause rattling and vibration.

The retaining wall

A retaining wall installed by Respondent requires a special inspection by the City of Scottsdale, which had not been requested or performed.

Mr. Fagerburg acknowledged that he did not know whether it was Respondent or the general contractor was responsible for arranging for that inspection.

Mr. Mora testified that LaBlonde Construction as the general contractor was responsible to call for the inspection of the retaining wall.

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 term “knowingly” requires “[o]nly a knowledge that the facts exist that bring the act or omission within the provisions of the statute using such a word” and “[d]oes not require any knowledge of the unlawfulness of the act or omission.” Ariz. Rev. Stat. § 1-215(17).

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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2. Departure from or disregard of:

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(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

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3. Violation of any rule adopted by the registrar.

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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

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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....

Although Complainant did not contract directly with Respondent, ROC was required to investigate the complaint because Complainant alleged that she suffered an injury as a result of Respondent’s failure to meet the workmanship standards and failure to adhere to the building codes. Ariz. Rev. Stat. § 32-1154(B).

ROC has jurisdiction over Respondent’s license even though the license is cancelled. Ariz. Rev. Stat. § 32-1154(D).

. Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

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 “The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of [Ariz. Rev. Stat. 32-1154] subsection A, paragraph 22.”

The preponderance of the evidence shows that Respondent’s work on the fireplace did not meet the applicable building code. Consequently, Respondent violated Ariz. Rev. Stat. section 32-1154(A)(2).

The preponderance of the evidence shows that Respondent’s work on the fireplace and the kitchen vent did not meet the workmanship standards as set out in ROC’s Directive. Consequently, Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

It has not been proven that Respondent, rather than LaBlonde, was responsible to have the retaining wall inspected. Consequently, it has not been proven that the failure to have that wall inspected was a violation by Respondent.

The preponderance of the evidence shows that Respondent knowingly contracted beyond the scope of its CR-61 license as alleged in ROC’s Directive. Consequently, Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(16).

Although Respondent was prohibited from performing corrective work or hiring another contractor to perform that work because its license was cancelled, ROC allows a contractor to comply with a directive by reaching a financial settlement with a complainant. Respondent failed to do so and has violated subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes, ROC has authority to discipline its license.

Considering the facts of this matter, including the fact that the general contractor LaBlonde was ultimately responsible to insure that the work at Complainant’s house was performed in a workman like manner, a five day suspension and a $250 civil penalty is appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar suspend Respondent American Mustang Landscaping LLC’s license number 305375 for five days and 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, November 29, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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