ALJDEC - Licensing
2022A-03894-CHC-ROC · Registrar of Contractors · 2023-03-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mindy Fincher ,
COMPLAINANT
v.
Colorado River Signature Homes LLC
License No. ROC 305517,
RESPONDENT
No. 2022A-03894-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 14, 2023, 9:00 A.M.
APPEARANCES: Complainant Mindy Fincher appeared on her own behalf: Brian A. Weinberger, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Colorado River Signature Homes, LLC, is the holder of License Number 305517 issued by the Registrar of Contractors (Registrar).
2. On or about May 13, 2022, Mindy Fincher (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the construction of a new home in Mohave Valley, Arizona, by Respondent (“project”).
3. The Registrar performed an inspection of the project on June 6, 2022. Thereafter, the Registrar issued a Directive, dated July 6, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 29, 2022 (“Directive deadline”), as follows:
Compliance Item: 2 - Staple at front door sticking out at entry.
Investigator’s Observation: Staple cut back. Minor stucco damage
needs repairs.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS
MATCHING SURROUNDING AREAS AS CLOSELY AS POSSIBLE
Compliance Item: 6 - Cabinet is scratched.
Investigator’s Observation: Cabinet sub-contractor was at onsite
inspection and agreed to correct minor scratches the Complainant has
identified.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Compliance Item: 10 - Cabinets scratched.
Investigator’s Observation: Cabinet sub-contractor was at onsite
inspection and agreed to correct minor scratches the Complainant has
Identified.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Compliance Item: 11 - Sliding glass door has deep scratch (defect).
Investigator’s Observation: Respondent stated that the "scratch" was
an interior defect and was being covered by the manufacturer.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Compliance Item: 17 - EXTERIOR: Stucco falling off.
Investigator’s Observation: Close of Escrow (COE) was 5/29/21. House
was just one one year old at time of onsite inspection. Time, weather, dirt affect the color of stucco applications making a perfect match of colored stucco almost impossible. That being said, the Respondent has made numerous minor stucco repairs and several appear to be almost white stucco and a poor match. Additionally there are several locations where the wire lath is visible through the stucco finish coat.
RESPONDENT SHOULD PROPERLY CORRECT THE "THIN" STUCCO
COLOR COAT AND PROPERLY CORRECT THE "WHITE" PRIOR STUCCO REPAIRS MATCHING THE SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
4. The Registrar performed a Compliance Inspection on August 22, 2022, at which it determined that Compliance Item Numbers 2, 6, and 10 were corrected and that Compliance Item Numbers 11 and 17 had not been corrected.
5. The Registrar then issued a Citation to Respondent, dated September 2, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, and issued a Notice of Hearing, dated November 16, 2022, that, after a continuance was granted, set a hearing for February 14, 2023, at 9:00 A.M.
7. At the February 14, 2023, hearing, Complainant Mindy Fincher testified on her own behalf. Respondent presented the testimony of Julio Naverte, Anthony Gonzalez, and Richard Leyendecker. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s exhibit numbers 1 - 4. No exhibits were submitted on behalf of Complainant.
8. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that at the compliance inspection he observed that Compliance Item Numbers 2, 6, and 10 were corrected and that Compliance Item Numbers 11 and 17 had not been corrected. He further testified that on September 27, 2022, Complainant advised him that Respondent painted the entire residence that was acceptable to her and that the sliding glass door had been replaced, but with another scratched sliding door. He also stated she told him of additional items she wanted to add to her Complaint, but that he advised her that he could not consider them in this case and that she would need to file a new Complaint to have them considered.
9. Complainant Mindy Fincher testified, as herein relevant to the Citation, that the house was repainted by Respondent to her satisfaction which alleviated the color mismatched stucco patch repairs. She also testified that with respect to the new replacement scratched sliding door, Respondent buffed out the scratch to her satisfaction. In response to the Tribunal’s inquiry to Complainant as to why she was proceeding with this case in view of the fact that all Directive items were corrected by Respondent, she indicated she was confused by the process and had thought it was the Registrar that was proceeding with the case.
10. As herein relevant to the Citation, Julio Naverte, owner of Respondent, testified on behalf of Respondent that Complainant was a subsequent owner of the residence. He stated she complained of only one scratch on the sliding glass door which he testified was not observable within 15 feet. He ordered a new sliding glass door on July 7, 2022, but was told delivery would took several weeks. It arrived on August 30, 2022, and installed within days. He testified he did not observe a scratch on the new door.
He further testified that he started stucco repairs before expiration of the Directive deadline. He stated that on approximately August 17, 2022, Complainant said she was satisfied with the repairs but she later stated she was not happy with the color of new patches of stucco. He stated he then agreed to repaint the entire house which he did at Respondent’s expense even though it had not been required by the Registrar.
11. As herein relevant to the Citation, Anthony Gonzalez, owner of Gonzalez Wall Systems, testified on behalf of Respondent that he did the original stucco work on the residence and that he went to do stucco repairs on behalf of Respondent before the Directive was issued. He stated he patched cracks with the same original color of stucco but advised Complainant that the color of the patches would not match because of the age of the home. He further testified he came back to the residence on August 17, 2022, and did stucco repairs and Complainant said she was satisfied but that she changed her mind. He stated he was then advised that Respondent decided just to repaint the entire house.
12. As herein relevant to the Citation, Richard Leyendecker, sales rep for Builders First Source, testified on behalf of Respondent that his company provided the sliding glass doors for the residence. He stated he could not see the scratch Complainant complained of which was on the exterior of the glass until it was pointed out to him and that it was not visible from even 3 feet away, much less 15 feet.
He further testified that Respondent ordered new glass from him which he stated was backordered 12 to 14 weeks. He testified that the scratch on the new panel was virtually in the same spot as the original panel.
13. Based on the evidence, the Tribunal finds that Compliance Item Numbers 2, 6, 10, 11, and 17 were all corrected by Respondent.
14. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on May 17, 2016. The site also reflects no previous discipline cases and four cases against Respondent that were resolved/settled and closed.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”
6. A.R.S. § 32-1154(A)(3). Complainant has not presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in compliance with Arizona Administrative Code Rule 4-9-108(a). There was no dispute that Respondent corrected all of the Directive items.
7. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish that Respondent failed to perform all corrective action without a valid justification. The evidence presented demonstrated that Respondent corrected all Directive items, even though it corrected Compliance Item Numbers 11 and 17 after the expiration of the Directive period. The Tribunal finds that the Directive period was effectively extended by Complainant in permitting Respondent to continue to perform corrective work after the Directive period had expired. Further, the Tribunal finds that the delay in the delivery of the new glass door after Respondent’s prompt ordering of it and Respondent’s continuous efforts to satisfy Complainant with stucco repairs both during and after the Directive period was a valid justification for not completing the corrective work within the time period given.
8. Accordingly, the Tribunal finds that Complainant has not established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and/or A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint shall be dismissed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, March 2, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
BRIAN A. WEINBERGER
WEINBERGER LAW
17767 N. Scottsdale Road
Suite 200
Scottsdale, Arizona 85255
[email redacted]
Attorney for Respondent
Broc Wickland, Esq.
111 N. 4th Street
Kingman, Arizona 86401
[email redacted]
Attorney for Complainant
By: OAH Staff