ALJDEC decisions subject to certification as final

2021A-04878-CHC-ROC · Registrar of Contractors · 2022-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian H. Algar,

COMPLAINANT,

v.

Legacy Home and Design LLC,

License No. ROC 316396,

RESPONDENT.

No. 2021A-04878-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 4, 2022

APPEARANCES: Brian H. Algar represented himself. Qualifying Party Paul M. Russell represented Legacy Home and Design LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Respondent is the holder of License No. ROC 316396, General Dual KB-2 Dual Residential and Small Commercial, issued by the Arizona Registrar of Contractors (“Registrar”) in November 2017.

On or about September 28, 2021, the Registrar received a Licensed Complaint Form (“Complaint”) from Complainant regarding a construction project including a concrete pad, sidewalk, and a snake wall. The Complaint was specific to part of the wall being crooked and [the wall] being improperly attached to a corner post. Complainant further alleged that the wall was built by an unlicensed contractor (due to a medical emergency suffered by Respondent’s owner).

After several rescheduled dates, on November 10, 2021, Registrar’s Investigator Jim Dimond conducted a jobsite inspection. Regarding workmanship, Investigator Dimond observed that the fence panels on the east end were installed with the leading edge at the front of the columns; additionally, he found that the panel at the northwest end inexplicably started as centered on the column but at the other end was at the leading edge (running at an angle) and needed to be corrected.

Investigator Dimond issued a Written Directive (“Directive”), dated December 3, 2021, directing that corrective action was necessary on the northeast corner where the two walls were improperly attached to the [corner] post. The Registrar set December 20, 2021 as the deadline for Respondent’s compliance with the Directive.

At hearing, Investigator Dimond testified that there had been access and availability issues as between the parties for scheduling completion of the corrective work.

At a compliance inspection on February 1, 2022, Investigator Dimond found that the walls-to-column correction had been made and that the corrective work met workmanship standards and noting, however, that, at the top of the column/post in question, the stucco “sand-finish” was “not consistent” with the other columns.

On December 30, 2021, Investigator Dimond pencil-cited the Complaint.

On January 5, 2022, the Registrar issued its Citation 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.”

At hearing, Complainant indicated that he had expected the corrective work to have been done, they said, in one day and that he had agreed to that. Based on his general dissatisfaction with Respondent, Complainant felt that all of Respondent’s work was substandard and he indicated that he did not want Respondent to come back due to the history of the matter. Complainant further indicated that he himself had refinished the top of the column.

At hearing, Mr. Russell indicated that, in 30 years, Respondent had never had a complaint.

After Mr. Lerma rebared and reconstructed the column, Mr. Russell filled the pockets with concrete; Mr. Lerma stuccoed the column sides and Mr. Russel applied the stucco mix to the top of the reconstructed column. At hearing, Mr. Russell testified that, when he had finished with the stucco mix on the top of the column, he felt it was “pretty close to being perfectly matched” to Mr. Lerma’s stucco application to the sides of the column.

Based on the hearing record, Respondent completed the corrective action that had been determined was required to be corrected by Investigator Dimond, pursuant to the Directive in this matter. Therefore, Respondent did not violate Ariz. Rev. Stat. § 32-1154(A)(22).

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only case open regarding Respondent; the Registrar’s record does not show any discipline on Respondent’s 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. Based on the hearing record, Complainant failed to establish that Respondent did not complete the corrective work in a workmanlike manner in a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B). Investigator Dimond found the one item he had directed Respondent to correct had, in fact, been completed and that the corrective work met workmanship standards.

10. The hearing record did not evidence that Respondent did not complete the corrective work following the directive being issued; the hearing record demonstrated there had been access and availability issues as between the parties for scheduling completion of the corrective work. Therefore, Complainant failed to establish that Respondent had failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

11. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issue was corrected and, thus, Respondent is not 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 is not 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. Thus, the Administrative Law Judge concludes that the Registrar should take no disciplinary action on Respondent’s ROC License No. 316396.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar dismiss and close the matter without any discipline on Respondent’s ROC License No. 316396.

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, March 25, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez