ALJDEC - Licensing
2022A-09444-CHC-ROC · Registrar of Contractors · 2023-07-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ryan Brooks ,
COMPLAINANT
v.
Somers Construction LLC
License No. ROC 325993,
RESPONDENT
No. 2022A-09444-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 3, 2023, 9:00 A, M.
APPEARANCES: Complainant Ryan Brooks appeared on his own behalf; Wayne Somers, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Somers Construction, LLC (Respondent), is the holder of License Number 325993 issued by the Registrar of Contractors (Registrar).
2. On or about October 17, 2022, Ryan Brooks (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with stucco work and painting of a residence in Lake Havasu City, Arizona, by Respondent (“project”).
3. The Registrar performed an inspection of the project on October 31, 2022. Thereafter, the Registrar issued a Written Directive, dated November 25, 2022 (Directive), requiring Respondent to remedy the following violations by appropriate means by December 30, 2022 (“Directive deadline”):
Compliance Item: 1 - Incomplete and poor quality on Stucco;
Investigator’s Observation: This is a house project under construction, Many of the complaint issues would likely have been addressed/corrected in the normal course of construction.
Stucco has areas of "transparencies" where the gray is showing through.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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 - Transparent stucco;
Investigator’s Observation: This is a house project under construction, Many of the complaint issues would likely have been addressed/corrected in the normal course of construction.
Stucco has areas of "transparencies" where the gray is showing through.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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 - Inconsistent base coat;
Investigator’s Observation: This is a house project under construction, Many of the complaint issues would likely have been addressed/corrected in the normal course of construction.
Stucco has areas of "transparencies" where the gray is showing through.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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 - Unprimed areas;
Investigator’s Observation: This is a house project under construction, Many of the complaint issues would likely have been addressed/corrected in the normal course of construction. Stucco has areas of "transparencies" where the gray is showing through.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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: 6 - Interior paint. Dirt and debris in paint, walls, doors
And millwork. Pulled paint on doors and millwork.
Investigator’s Observation: This is a house project under construction, Many of the complaint issues would likely have been addressed/corrected in the normal course of construction.
RESPONDENT SHOULD PROPERLY ADDRESS ALL OF THE PAINT ISSUES. DIRT, DEBRIS IN PAINT ANY INCOMPLETE OR PULLED PAINT.
4. After being informed that Respondent had not completed all corrective work, the Registrar performed a Compliance Job Inspection on April 14, 2023, at which time the Investigator noted the following:
Compliance items remaining as of 4-14-23 Compliance Onsite Inspection.:
1. Interior painting still has areas where paint is chipped, missing, poor match, and poor application.
2. Door hinge missing screws.
3. Toe kick separating on bath vanity.
4. Poor workmanship cutting out back of cabinet.
5. Poor drywall texture work at attic access.
6. Poor cut at baseboard corner.
Compliance Findings: Respondent is NOT in compliance.
5. The Registrar then issued a Citation to Respondent, dated May 2, 2023, 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 for July 3, 2023, at 9:00 A.M.
7. At the July 3, 2023, hearing, Complainant Ryan Brooks testified on his own behalf and presented the testimony of Nicole Brooks; Wayne Somers, Owner, testified on behalf of Respondent. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits for the hearing. The hearing was left open for seven days for Complainant to submit photographs, which Complainant did after the hearing that day and which were admitted into evidence. Complainant indicated they had attempted to submit them through the portal prior to the hearing but was unsuccessful.
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 Complaint Item numbers 1, 3, 4, and 5 were corrected by Respondent but Complaint Item number 6 was not. He further stated he recognized that Compliance items 2 - 6 in his notes were new items and not included in the Directive.
9. Complainant Ryan Brooks testified, as herein relevant to the Citation, that Respondent was hired to build the home and that the painting has never been resolved, despite multiple attempts, due to lack of supervision of the subcontractors. He further testified as to sand that has done damage to the paint.
10. Nichole Brooks, Complainant’s wife, testified on behalf of Complainant, as herein relevant, that Respondent made attempts to remedy the painting and she has made the home accessible to Respondent as much as possible. She also stated she walked the home with Respondent to point out deficiencies.
11. Wayne Somers, owner of Respondent, testified on behalf of Respondent, as herein relevant, that he met his painter subcontractor at the residence to go over his assignment. He claimed his subcontractor had painted hundreds of homes for him and has a great reputation. He stated he had asked Complainant to walk the house and mark the areas but said that Complainant was not always available. He stated Complainant was never satisfied with any of the attempts at repainting.
11. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on August 28, 2019. The site also reflects one Open case, no Disciplined cases, and no Resolved/Settled cases.
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 presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner which was not in compliance with Arizona Administrative Code Rule 4-9-108(a). The Tribunal is persuaded from the photographs and the testimony of the Investigator that the painting was not done in a workmanlike manner. All other Complaint items were corrected.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. The evidence reflected that the matter concerning the interior painting deficiencies had been on-going for over five months leading up to the Compliance Inspection. While Respondent made efforts to remedy the deficiencies, no valid justification was shown for failing to eliminate those deficiencies with regard to the painting.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) with regard to Complaint Item Number 6, and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Somers Construction, LLC, License Number 325993 is suspended for two (2) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
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, July 31, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada
Director - Registrar of Contractors
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Somers Construction LLC
[email redacted]
Ryan Brooks
[email redacted]
by: OAH Staff