ALJDEC - Licensing
2023A-01629-CHC-ROC · Registrar of Contractors · 2023-07-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lars Raisanen ,
COMPLAINANT
v.
Desert Horizon Plastering LLC
License No. ROC 318367,
RESPONDENT
No. 2023A-01629-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 5, 2023, 1:00 P.M.
APPEARANCES: Complainant Lars Raisanen appeared on his own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Desert Horizon Plastering, LLC (Respondent), is the holder of License Number 318367 issued by the Registrar of Contractors (Registrar).
2. On or about February 9, 2023, Lars Raisanen (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with stucco work performed by Respondent at a residence in Phoenix, Arizona (“project”). The Complaint reflected a contract amount of $24,000.00.
3. The Registrar performed an inspection of the project on March 20, 2023. Thereafter, the Registrar issued a Directive, dated March 24, 2023, requiring Respondent to remedy the following violations by appropriate means by April 14, 2023:
Compliant Item 1: They did a 2 coat 1/2" system (1/4" per coat) and smooth stucco needs 3 coats at 3/4" thick;
Investigator’s Observation: Verified. I am able to verify the smooth finish stucco thickness does not comply with IRC R702.2.2 and IRC table R702.1(1). The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 2: Stucco is cracking everywhere;
Investigator’s Observation: Verified. Per ROC Workmanship Standards, hairline cracks, if excessive or cracks that exceed 1/16” are unacceptable. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 3: Stucco is heaving;
Investigator’s Observation: Verified. It is this investigator’s opinion that the cause of the heaving, raised surfaces and 1⁄2” movement at the garage man door wall is due to inadequate anchoring of the lath and foam to the framing. The respondent shall determine cause and correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 5: Missing flashings;
Investigator’s Observation: Verified. I observed and am able to verify there is no Jweep or stucco stop installed at the side garage man door exterior header. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 6: Stucco corners on eaves, windows, and door returns are not
straight.
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 7: Multiple iron doors were gouged from lath installation;
Investigator’s Observation: Verified. The scratches and gouges observed on the finished surfaces are extensive on both sides of the door and door jambs, does not appear to be the result of abuse or neglect and the scratches resemble the appearance and pattern of the expanded metal lath. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
4. After the expiration of the time period in which to perform corrective work and after being informed by Complainant that no corrective work had been performed by Respondent, the Registrar then issued a Citation to Respondent dated, April 19, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
b. 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);
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated May 11, 2023, notifying the parties that a hearing had been set for June 23, 2023, at 9:00 A.M. The notice reflected it was sent to the parties at their addresses of record on May 11, 2023.
6. At the hearing on June 23, 2023, Complainant Lars Raisenan testified on his own behalf; no appearance was made on behalf of Respondent. David Fagerberg, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license.
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 Complainant advised him that Respondent did not perform corrective work prior to the Directive expiration date, but that some minor work was performed after the Directive, but that Respondent did not return thereafter. He stated the basis for abandonment or refusal to work cite was his observation that only two of three coats were applied. He further testified that there was no written contract, but instead only a written quote.
9. Complainant Lars Raisenan testified, as herein relevant to the Citation, that the whole process was a “nightmare.” He further testified there were excessive hairline cracks and that Respondent never came back to apply a third coat as was promised after he made final payment. He stated Respondent came back on Thanksgiving to assess the problems and said would come back but never came back. He stated a month ago they came back do some patching, but he said it looks bad and they did not address any other Directive items.
10. Administrative notice is taken of Respondent’s prior license record which reflects that Respondent’s License No. 318367 was first issued on March 8, 2018. Such prior license record also reflects three open cases, no disciplined cases, and one 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 such 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. The Notice of Hearing mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. 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, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
...
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
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.....
6. 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.”
7. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). No evidence was presented to dispute that Respondent failed to complete the project without a legal excuse.
9. 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 and did not comply with Arizona Administrative Code Rule 4-9-108(a). No evidence was presented to dispute existence of any of the Directive items.
10. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the contract. The evidence was uncontradicted that the contract between the parties for the project was in excess of $1,000.00, but that such contract was not in writing.
11. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification, and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). No evidence was presented of a valid justification for failing to complete corrective work.
12. Accordingly, Complainant has met his burden of proof to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), 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, Desert Horizon Plastering, LLC’s, License Number 318367 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has created or modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 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 25, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Desert Horizon Plastering, LLC
8429 W. Devonshire Ave.
Phoenix, AZ 85037
[email redacted]
[email redacted]
Lars Raisanen
P.O. Box 7622
Cave Creek, AZ 85327
[email redacted]
By: OAH Staff