ALJDEC decisions subject to certification as final

2022A-00322-CHC-ROC · Registrar of Contractors · 2022-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marc Garcia,

COMPLAINANT

Jeff Vaughn Homes LLC

License No. ROC 202002,

RESPONDENT

No. 2022A-00322-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 17, 2022

APPEARANCES: Marc Garcia on his own behalf; Michael J. Harper, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 13, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 17, 2022 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Jeff Vaughn Homes LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 202002 issued by ROC. Jeff Vaughn is a member of the LLC and Respondent’s qualifying party. Mr. Vaughn retired and surrendered his license on July 15, 2021 when he turned 70. Respondent’s license has not been active since that date.

Complainant is Marc Garcia. Complainant purchased a home built by Respondent located at 1905 East Ayden Court in Payson, with the close of escrow being December 14, 2020.

Complainant did not file a disclosure statement, but testified on his own behalf.

Respondent presented the testimony of Mr. Vaughn, Rick Gonzales, and Tony Mendoza. ROC investigator Chris Allison also testified.

Complainant has filed at least three complaints against Respondent, with the complaint at issue having been filed on January 10, 2022. ROC’s Mr. Allison was assigned to all three complaints.

On January 5, 2021, Complainant filed a complaint in case number 2021-00040, and he subsequently filed three addenda to that complaint.

On July 27, 2021, Complainant filed a complaint in case number 2021-03520, and he subsequently filed an addendum in that case.

Collectively, Complainant’s complaints have raised dozens of allegations. In 2021 and 2022, Mr. Allison was at the site many times with Respondent and the subcontractors. Mr. Allison testified to the effect that Respondent had been attentive to the issues raised in Complainant’s complaints and addenda.

Mr. Vaughn’s opinion was to the effect that some of what ROC had ordered Respondent to repair based on Complainant’s previous complaints was not fair.

A March 26, 2021 addendum to the complaint in case number 2021-00040 includes an allegation that the driveway and walkway pavers were loose and separating. Rick Gonzales, who was responsible for the paver installation, testified that that Respondent corrected that issue to Complainant’s satisfaction prior to Complainant filing the current complaint. He also testified to the effect that Respondent had performed some work to appease Complainant, even though Respondent did not agree that the work was deficient.

Prior to the current complaint being filed, Complainant had other contractors performing work at the site and Respondent takes the position that these other contractors could have been responsible for the deficiencies at issue.

Complainant acknowledged that another contractor performed work including installing pavers at the side or back of the house and that this work included materials being delivered. He testified however that no heavy machinery was used, the material had not been piled on the driveway, the contractor drove on the side yard, not the driveway, and he wheelbarrowed or carried the required material from the street.

Mr. Allison acknowledged that at one site visit, which other evidence shows was in May 2021, he had seen a truck on the driveway. Initially he testified that it was a flat-bed style materials truck, but subsequently testified that it was a three-quarter- or one-ton pickup truck. Mr. Vaughn saw 10 to 12 yards of dirt on the driveway, in a location that would have required the truck to back onto the driveway to dump it.

Mr. Gonzales saw piles of dirt on the driveway, and although he did not see it delivered, the location was such that the delivery truck would have had to go on the driveway.

Mr. Gonzales had seen the work completed by the other contractor(s) before the current complaint was filed and was of the opinion that the work would have required a couple of big trucks (i.e. ten-wheel trucks) to deliver the required material. He was also of the opinion that these trucks could have caused the alleged deficiencies in this matter.

Respondent introduced evidence showing that on May 11, 2021, Payson Materials delivered 14.37 tons of material (coarse granite) to the site in a 10-wheel truck with a fully loaded weight of 27.84 tons. Complainant testified that this material was dumped in a cul-de-sac, and not on the driveway. Mr. Mendoza was the delivery driver, but he could not recall where the material was dumped.

Complainant filed his current complaint on January 10, 2022, and Mr. Allison conducted a jobsite inspection on February 10, 2022.

On February 18, 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 March 6, 2022.

***

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Corrective workmanship per ROC order very poor, Bricks moving and raising at road front.

Investigator’s Observation: At the time of the inspection, the pavers were the driveway meets the apron were raised above the apron. shall correct in an appropriate manner.

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 - Driveway is rolling up and down due to no compaction or settling. Bricks loose on walkway

Investigator’s Observation: At the time of the inspection, There were some variations in the flatness and consistent slope of the driveway.

Workmanship Standards state:

INTERLOCKING PAVERS

9. PD Uneven or wavy pavers.

AT Excessive deviations, dips or sags over short distances are considered unacceptable.

CR Contractor should make necessary repairs.

ICPI standards state:

3.05 FIELD QUALITY CONTROL

A. The final surface tolerance from grade elevations shall not deviate more than ±3/8 in. (±10 mm) under a 10 ft. (3 m) straightedge. Respondent shall correct in an appropriate manner.

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 determined that the other items in Complainant’s current complaint did not require correction.

Respondent did not perform any corrective work in response to ROC’s February 18, 2022 Directive.

ROC issued to Respondent a Citation dated March 16, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

At the hearing, Mr. Allison testified as to his observations and as to potential causes of the variations in flatness of pavers, which he referred to as undulations. He did not offer any opinions as to what may have caused the height-differential between the pavers and the apron.

There was no quantitative evidence as to how far above the concrete apron the pavers identified in Item 1 were, and there was no standard provided against which this height-differential could be compared. Regarding Item 3, although the ICPI standard is in evidence, there is no quantitative evidence to show that the undulations exceed this standard.

Mr. Allison agreed that a driveway could have some variation in slope, but in this case there was undulation i.e. highs and lows, that was not appropriate.

Mr. Allison acknowledged that a heavy truck could cause damage to the pavers, but his opinion was to the effect that the undulations he observed were not the type that a heavy truck or machinery would cause, which would be groove-like with sinking of pavers on one side and lifting on the other side. Here the variation was not as pronounced as a truck or equipment would cause.

Mr. Allison’s prior experience gave him some background to say what caused the undulations, but he could not say with 100% certainty that these undulations were not caused by a truck. Nevertheless, his opinion was that it was more likely than not that the undulations were not caused by a truck, and that is why ROC’s Directive was issued.

The garage is lower than the street. About two feet from the garage, is a “valley” through which the water coming down the driveway and away from the garage drains.

Mr. Gonzales and Mr. Vaughn each testified to the effect that the driveway was designed to include a number of very fine grade breaks that are to avoid use of a “hinge” to transition from the sloped driveway to the garage. Use of a hinge would create a risk of cars bottoming out, and this had been explained to Mr. Garcia.

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).

Although Respondent’s license is no longer active, ROC has jurisdiction over that license. Ariz. Rev. Stat. section 32-1154(D).

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.”

Regarding the uneven transition between pavers and the concrete apron, there was no evidence as to the size of the height-differential or the number of pavers at issue and there was no objective standard against which to measure the deviation. Based on Mr. Alison’s testimony, this might be the type of damage (one side of a paver being elevated) that a heavy truck could cause. Consequently, it has not been proven that this is a workmanship deficiency.

Regarding the undulations, Mr. Allison provided testimony is that it is doubtful that a truck would have caused that effect, which is persuasive in light of Respondent’s position that the driveway was designed with a series of fine grade changes to avoid the need for a hinge. Moreover, although a standard is given, there no measurements in evidence to show that the driveway is out of compliance with that statndard. Consequently it has not been proven that this is a workmanship defect.

It has not been proven by a preponderance of the evidence that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A), and there is no proven a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Because it has not been proven that Respondent’s work was deficient, Respondent’s failure to comply with ROC’s Directive is justified. It has not been proven by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

This matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2022-00322 is dismissed.

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.

-54864001

001

-137160-45720000Done this day, June 6, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary