ALJDEC decisions subject to certification as final

2022A-02806-CHC-ROC · Registrar of Contractors · 2022-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lynda L Cambern,

COMPLAINANT

Marilyn Ann Bowie-Martin

DBA: Martin Rockworks

License No. ROC 191670,

RESPONDENT

No. 2022A-02806-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2022

APPEARANCES: Complainant Lynda L. Cambern appeared via Google Meet. Joshua Martin, Qualifying Party, appeared via Google Meet on behalf of Respondent. Registrar of Contractors Investigator Manny Bermudez appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Marilyn Ann Bowie-Martin DBA: Martin Rockworks. (Respondent) is the holder of License No. 191670 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 17, 2020 Lynda L. Cambern (Complainant) agreed to have Respondent build a patio with an adjustable canopy, walkways leading to the same, and miscellaneous landscaping in her backyard. The total cost was $4,603.06.

On or about April 7, 2022, the Registrar received a Complaint containing six items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Manny Bermudez. The jobsite inspection was performed on May 18, 2022.

Investigator Bermudez then issued a written directive on or about May 18, 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 June 14, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Shade structure/canopy was moved and cemented into the top of the hill. They broke the canopy and still cemented into the flat portion of the hill they put in.

Investigator’s Observation: Verified: At time of inspection, I observed a metal shade structure without a canopy. Respondent acknowledged that the canopy had been damaged and in a written response offered to "furnish a new canopy."

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 - All bushes died within two months

Investigator’s Observation: Verified: At time of inspection I observed a row of 5 ceramic planters without plants. In a written response the respondent "offered to refund full cost of plants".

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: 5 - Front fence/gate was broken and needed to be replace latch so it would shut. - second gate was damaged while putting it back up.

Investigator’s Observation: Verified: At time of inspection, I observed that the gates mentioned were both operational. The respondent acknowledged that issues with the patio wall might have caused the improper operation of the front gate.

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 June 17, 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about June 27, 2022, Respondent filed an Answer to the Registrar, stating the following:

Complaint items No 3 and 5 have been remedied. The back gate has been rebuilt. Money has been refunded in full in the form of a business drawn check No 1342 in the amount of $530.00. Which has been cashed for the plants and irrigation. In regards to citation No 2 over canopy damage, the complainant rejected a new fixed canopy or compensation. Wanted slide canopy repaired parts are unavailable for a repair. Have done everything in my power to satisfy the complaints above. With over 30 years of contracting experience this is our first citation.

(All errors contained in the original).

On or about July 14, 2022, a Notice of Hearing was issued setting a hearing on August 24, 2022 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Bermudez testified as to the Registrar’s involvement and the above timeline.

Investigator Bermudez testified that he did not complete a compliance inspection nor a prehearing inspection, and that it was his belief that Respondent failed to timely complete the Directive.

Lynda Cambern testified on her own behalf. She testified that the block wall was repaired, but not until after the Directive had expired. However, it still did not function correctly.

Ms. Cambern testified further that she did not recall receiving compensation for the plants.

In addition, Ms. Cambern testified that while Mr. Martin wanted to know the make and model of the canopy, he never offered to replace the same.

Finally, Ms. Cambern testified that she just wanted what she asked for, and wants the same adjustable canopy shade that was supplied with the canopy.

Joshua Martin testified on behalf of Respondent.

As to the canopy, Mr. Martin testified that when his workers were installing the same, two bracket harnesses broke. He offered to install a fixed canopy, but Ms. Cambern refused, as she wanted the canopy to be adjustable. Mr. Martin also testified that while he tried to find the exact parts he could not, so he offered to purchase a new canopy for Ms. Cambern. He acknowledged that there is still no covering on the structure.

As to the gate, Mr. Martin testified that he fixed the block wall, albeit a few days after the Directive, June 17, 2022, and that it latched properly when he left the project.

Finally, as to the plants, Mr. Martin again re-iterated that he had paid Ms. Cambern $530.00 to replace the plants and she accepted the same.

Administrative notice is taken of Respondent’s prior License record on September 7, 2022 Such prior License record reflects that Respondent’s License No. 191670 was first issued on February 19, 2004, and reflects that there was one open complaint, namely 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 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was no covering on the patio structure, the plants had died and the block wall was damaged such that the gate would not latch. 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).

No evidence was presented by Mr. Bermudez or Ms. Cambern as to whether or not there was a proper contract, therefore, the tribunal finds no violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued as to the canopy. While Mr. Martin tried to make an offer to resolve the issue, Ms. Cambern refused the same, and the patio still remains the same nearly two years later. 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).

However, a preponderance of the evidence established that Respondent satisfied the plant issue albeit a few days late, by Ms. Cambern acceptance of the $530.00 payment. In addition, because there was no compliance inspection or prehearing inspection completed, there was no credible evidence to demonstrate whether the gate is now working properly. Therefore, the tribunal does not find a violation of A.R.S. § 32-1154(A)(22), as to these two issues.

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. 191670 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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.

-54864001

001

-137160-45720000Done this day, September 7, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary