ALJDEC decisions subject to certification as final

2021A-04017-CHC-ROC · Registrar of Contractors · 2022-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Jean DeWitt,

COMPLAINANT,

Walker's Enterprises Inc

dba Sun Valley Stucco,

License No. ROC 283688,

RESPONDENT.

No. 2021A-04017-CHC-ROC

No. 2021A-04134-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 21, 2021

APPEARANCES: Barbara Jean DeWitt “(Complainant”) appeared. Qualifying Party Douglas Dwayne Walker represented Walker's Enterprises Inc dba Sun Valley Stucco (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Respondent is the holder of License 283688, KB-1 Dual Building General Residential Contractor, issued by the Arizona Registrar of Contractors (“Registrar”) in March 2013.

West Adobe Ranch Place home

On August 17, 2021, the Registrar received Complainant’s Licensed Complaint Form (“Complaint”) regarding Respondent’s work at a home on West Adobe Ranch Place in Marana, Arizona. The Complaint noted poor workmanship in two areas: water penetration and excessive cracking; and drywall damage due to water penetration. The contract date was March 8, 2020 and the start date was June 25, 2020.

Long residence

On August 24, 2021, the Registrar received Complainant’s Complaint regarding Respondent’s work at a home on West Summer Ranch Place in Marana, Arizona. The Complaint noted poor workmanship in three issues: water penetration and excessive cracking; drywall damage due to water penetration; and delinquency in performing “repair” work. The contract date was March 8, 2020 and the start date was June 25, 2020.

On September 22, 2021, Registrar’s Investigator John Smith conducted a jobsite inspection at both homes and thereafter issued a Written Directive (“Directive”), dated September 24, 2021, directing that corrective action was necessary regarding excessive cracking. The Directive indicated as follows:

There is an excessive amount of stucco cracks, throughout. Arizona Workmanship Standards state that if stucco cracks are excessive, the contractor is to determine the cause and make necessary repairs. The contract between the parties includes: “...hair line cracks/cracking are normal with this product.” This statement is does not release the respondent of liability for an excessive amount of stucco cracks.

The Registrar set October 15, 2021 as the deadline for Respondent’s compliance with the Directive. After Complainant indicated that no corrective work had been performed, on October 22, 2021, the Registrar issued its Citations charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108, and Ariz. Rev. Stat. § 32-1154(A)(22).

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 Registrar noticed the matter for hearing.

At hearing, Complainant indicated that this particular color-integrated stucco product is required by the HOA at the subdivision and, she argued, that the stucco now needs to corrected per the Directive. Complainant acknowledged that stucco may have hairline cracks but argued that the Investigator identified multiple areas of cracking in excess of workmanship standards, as evidenced by the Investigator’s photographs.

At hearing, Respondent’s position was that he had performed stucco work on thousands of home and that he is not responsible for the product cracking after the thoroughly explained the problems that may result from the Western One smooth coat product to Complainant at the time of the contract; he further indicated that the color-integration makes the product more susceptible to cracking. Respondent further argued that that his contracts specify the product will evidence “hairline” cracks which are normal for the product; essentially, Respondent posited that the Registrar cannot throw out his “valid contract” based on “expected” product performance. Respondent argued that several building construction issues had affected the stucco.

Investigator Smith’s photographs document excessive cracking. The hearing record does not demonstrate completion by Respondent of the Directive corrective work ordered. Further, the hearing record does not demonstrate any extension of the Directive deadline.

Based on the hearing record, Respondent failed to complete the corrective action as had determined was required by Investigator Smith, pursuant to the Directives, by the October 15, 2021 date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that these are the only open cases regarding Respondent; the Registrar’s record does not show any discipline on the license as of the date of this recommended decision.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

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 section R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano 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).

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).

5. 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.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. 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).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Regarding the Complaint, Investigator Smith determined that, following Respondent’s stucco work at the two properties, there were workmanship issues with the stucco evidenced by excessive cracking. The Directive work remained unaddressed following the October 15, 2021 Directive deadline. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 329014 as follows: on the date of the Registrar’s Order in this matter, Respondent’s ROC License 329014 is suspended for a period of five (5) 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.

Recommended this date, January 10, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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