ALJDEC decisions subject to certification as final

2022A-00149-CHC-ROC · Registrar of Contractors · 2022-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Valerie King,

COMPLAINANT

National Construction and Development Inc,

License No. ROC 248525,

RESPONDENT

No. 2022A-00149-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 7, 2022

APPEARANCES: Complainant Valerie King appeared via Google Meet. Tracy Browning appeared via Google Meet on behalf of Respondent National Construction and Development Inc. Registrar of Contractors Investigator Robert Mcquien appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

National Construction and Development Inc. (Respondent) is the holder of License No. 248525 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 14, 2022, Valerie King (Complainant) signed a contract with Respondent for construction of a pool and surrounding deck in the backyard. The contract amount was for $59,961.38.

On or about January 3, 2022, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Robert Mcquien. The jobsite inspection was performed on February 1, 2022.

Investigator Mcquien then issued a written directive on or about February 2, 2022 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 25, 2022.

. . .

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

Compliance Item: 2 - The Jacuzzi wall near the waterfall is crooked.

Investigator’s Observation: Block to right from waterfall to pool cut crooked. CONTRACTOR TAKE CORRECTIVE ACTION.

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 - The color of pool had blemishes, circles and very uneven.

Investigator’s Observation: Pool finish has blemishes and a large circular mark on bottom. CONTRACTOR TAKE CORRECTIVE ACTION.

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.

. . .

(All errors contained in the original)

On March 23, 2022, Investigator Mcquien conducted a compliance jobsite inspection. His notes regarding the same indicated the following:

. . .

Compliance Findings: On the Written Directive issued on February 2, 2022, there were two items listed for correction. Item not resolved, Compliance Item 2 – The Jacuzzi wall near the waterfall is crooked. Observation: Block to right from waterfall to pool cut crooked.

CONTRACTOR TAKE CORRECTIVE ACTION.

. . .

(All errors contained in original)

On March 24, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about April 4, 2022, Respondent filed an Answer with the Registrar.

On or about April 21, 2022, a Notice of Hearing was issued setting a hearing on June 7, 2022 at the Office of Administrative Hearings, an independent state agency.

Investigator Mcquien testified as to his involvement and the above timeline.

Investigator Mcquien testified that there were seven other complaint items which were deemed to be contractual in nature.

As to compliance item 2, the spillway being crooked, Investigator Mcquien testified that the block was not square and extended further out and referenced the same in the photographs he took as part of both inspections. Investigator Mcquien noted that this had not been repaired and believed that Respondent had ample time to make the repair.

As to compliance item 3, Investigator Mcquien noted that he first observed that the pool finish had blemishes and a large circular mark on the bottom. However, while investigating this item at the compliance inspection, he noticed that that there was not a circle, but a “swirl” due to the possibility of a hose being laying at the bottom of the pool. Because of this, Investigator Mcquien noted that Respondent was in compliance with this item.

Ms. King testified on her own behalf and offered 33 exhibits into evidence. In addition, she offered the testimony of Mark Braatz.

Ms. King testified that the spillway block still has yet to corrected, and that Mr. Browning could have repaired the same while he was on the property on the Friday when the pool was being drained.

Ms. King also testified that she disagreed with Investigator Mcquien’s conclusion as to whether there was still a circle as she testified that as of the night prior to the hearing, she was still able to visibly notice a circle on the bottom of the pool.

Mr. Braatz testified that he too observed that there was still a circle on the bottom of the pool.

Mr. Browning testified on his own behalf and offered 13 exhibits into evidence.

Mr. Browning testified that he agreed with Investigator Mcquien’s conclusion as to the markings on the bottom of the pool were caused by the vacuum hose remaining stationary on the bottom of the pool.

As to the issue with the block on the spillway, Mr. Browning testified that he acknowledged that the block was uneven. Further, he testified that when he came to repair the same, Ms. King informed him that this was the least of her worries. Mr. Browning also testified that Ms. King became hostile and he left the premises and did not repair the same.

Administrative notice is taken of Respondent’s prior License record on June 20, 2022. Such prior License record reflects that Respondent’s License No. 248525 was first issued on August 29, 2008, and reflects that there 2 open complaints, one of which is the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Browning did not dispute that there were issues with spillway deck being uneven. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence established that Respondent was not in compliance with repairing the spillway block. Respondent provided no persuasive evidence to demonstrate that Ms. King prevented Mr. Browning from repairing the block. Further, Mr. Browning could not elaborate as to how Ms. King created a hostile environment for him to perform the corrective work. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

The preponderance of the evidence also demonstrated that markings on the bottom of the pool were no longer at issue and were deemed acceptable.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 248525 for a period of four days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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)(7), 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 30 days from the date of that certification.

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-137160-45720000Done this day, June 20, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary