ALJDEC decisions subject to certification as final

2021A-06309-CHC-RHG · Registrar of Contractors · 2022-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Francisco Fuentes,

COMPLAINANT

R & V Construction LLC

License No. ROC 317751,

RESPONDENT

No. 2021A-06309-CHC-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 11, 2022

APPEARANCES: Francisco Fuentes on his own behalf; Jorge Gramajo for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 1, 2022, the Registrar of Contractors (“ROC”) issued an Amended Notice of Hearing on Contested Case setting the above captioned matter for hearing on August 11, 2022 at the Office of Administrative Hearings.

Through its Amended Notice of Hearing, ROC alleges that Respondent R & V Design LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 317751 issued by ROC. Respondent’s license was voluntarily cancelled in March 2022. Jorge Gramajo, who was Respondent’s qualifying party and a member of the LLC, appeared and testified for Respondent.

Complainant is Francisco Fuentes, who appeared and testified.

ROC investigator Manuel Bermudez also testified.

Complainant and his wife purchased a home Respondent built, with the close of escrow on December 26, 2019.

In or about June 2020, Complainant filed with ROC a complaint against Respondent. ROC designated that matter as case number 2020-02476. Mr. Bermudez conducted a jobsite inspection and issued a Directive to Respondent that as pertinent to this matter included a finding that tile in the house had lippage in excess of the allowable tolerance.

ROC dismissed case number 2020-02476 because Complainant advised that the matter had been resolved.

On November 23, 2021 Complainant filed with ROC the complaint at issue alleging poor work on Respondent’s part.

ROC investigator Mr. Bermudez conducted a jobsite inspection on January 6, 2022.

On January 6, 2022 , 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 February 1, 2022.

****

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - The ceramic tile all throughout the house is uneven, (lippage).

Investigator’s Observation: Verified: At time of inspection I observed multiple areas throughout the residence of tile lippage in excess of 1/32".

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Recently a crack appeared in the hallway breaking one of the tiles,

Investigator’s Observation: Verified: At time of inspection, I observed a cracked tile in the hallway area.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Some of the tile sounds hollow underneath in different places.

Investigator’s Observation: Verified: At time of inspection, I observed multiple areas of excessive hollow sounding tiles.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Some of the replaced tiles are different color

Investigator’s Observation: Verified: At time of inspection, I observed several tiles in the dining room and kitchen area that were not consistent in color.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ROC extended the deadline for compliance to February 15, 2022 because the parties were working to resolve the matter.

The parties did not come to a resolution and ROC issued to Respondent a Citation dated February 22, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Bermudez provided credible testimony showing that tile installed by Respondent had lippage exceeding the ROC standard for this application of 1/32 inch. The number of such tiles is not in the record.

Respondent does not dispute that the applicable standard for lippage is 1/32 inch, but opined that this is not readily achievable and that 1/8 inch is typical.

Mr. Bermudez provided credible testimony showing that some tile installed by Respondent had excessively hollow sound. The number of such tiles is not in the record.

Mr. Bermudez provided credible testimony showing that some replacement tile installed by Respondent was not consistent in color. The number of such tiles is not in the record.

The evidence shows that one tile installed by Respondent was cracked, but the cause of that cracking is not in evidence.

Respondent argues that Complainant accepted its work when case number 2020-02476 was dismissed and to the effect that Complainant should not be allowed to re-raise the issue.

Complainant testified to the effect that when he informed ROC that the matter had been resolved in case number 2020-02476, he was doing so with the understanding that Respondent was going to return to the site to perform more corrective work, but Respondent did not do so.

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 preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A) in that some tiles had excess lippage, some tiles had excessive hollow sound, and some tiles were not consistent in color. It was not proven by a preponderance of the evidence that the cracked tile was the result of poor work by Respondent. Consequently, Respondent had violated Ariz. Rev. Stat. section 32-1154(A)(3).

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).

Although Respondent’s license has been voluntarily cancelled, ROC has authority to discipline that license. Ariz. Rev. Stat. § 32-1154(D)

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.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent R & V Design LLC’s license No. 317751 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 24, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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001

-137160-45720000By Miranda Alvarez

Legal Secretary