ALJDEC - Licensing
2023A-04331-CHC-ROC · Registrar of Contractors · 2024-04-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Byron Keith Thomas ,
COMPLAINANT
v.
Absolute Remodeling and Construction Inc
DBA: Platinum Garage Door Sales & Service
License No. ROC 175926,
RESPONDENT
No. 2023A-04331-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 20, 2024, 1:00 P.M.
APPEARANCES: Complainant Byron Thomas appeared on his own behalf; Jim Suor, Qualifying Party, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Absolute Remodeling and Construction, Inc. (Respondent), is the holder of License Number 175926 issued by the Registrar of Contractors (Registrar).
2. On or about April 11, 2023, Byron Keith Thomas (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work by Respondent in connection with stucco work as part of the construction of a new residence in Casa Grande, Arizona (“project”).
3. The Registrar performed inspections of the project on July 19, 2023, and September 12, 2023. Thereafter, the Registrar issued a Written Directive, dated September 15, 2023 (“First Directive”), requiring Respondent to remedy the following violations by appropriate means by October 6, 2023, which was extended to October 20, 2023:
Complaint Item: Stucco code violation repairs unsatisfactory. Investigator’s Observation: Verified. As a consequence of an earlier repair of the weep screed and stucco being out of code (less than 2” from the patio), it was discovered that the repair left stucco debris on the patio surface as well as exposing the previously covered area of the patio which is not stained. The staining was previously completed by the Respondent due to an issue with insulation that left the concrete patio unsightly. Additionally, during the repairs to the stucco, a worker taped plastic down to protect the patio which left permanent marks when the tape was removed in multiple areas. This was verified by the Respondent who stated the subcontractor admitted the marks were from the workers’ tape. The complainant also pointed out one area on the back patio columns where the stucco is extremely thin and wire is protruding through the stucco. Additionally, on another column, there is a weep screed corner with a sharp edge protruding. The Complainant also pointed out an area at the southeast corner of the patio, however, this corner meets minimum industry standards and requires no correction. The Respondent will need to correct these issues and any additional similar issues by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
4. Thereafter, on November 30, 2023, the Registrar performed a Compliance Job Site Inspection at which time it found the Directive item to be uncorrected.
5. The Registrar then issued a Citation to Respondent, dated December 6, 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. Although Respondent’s Answer was untimely and a default was entered, the Registrar found good cause to issue an Order Setting Aside Final Administrative Decision and Order (Default) and Order Setting Hearing, dated January 22, 2024.
7. A Pre-Hearing Inspection was conducted on March 19, 2024, and the following was observed:
Compliance Item: - Concrete paint is chipping and is easily scratched off. Investigator’s Observation: I observed multiple areas of the rear patio with scratches/scuffs and pits/missing spots of paint throughout the entire slab, most notably in the area of the dining table. The pits/spots of missing paint were easily made larger with a fingernail and light pressure.
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
8. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for March 20, 2024, 1:00 P.M. At the hearing, Complainant Byron Keith Thomas testified on his own behalf; Respondent presented the testimony of Matt Suor, Qualifying Party, Paul Cooper, and Anthony Maga. Wes Ellington, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. Neither party submitted exhibits to this Tribunal. The closing of the hearing was continued to March 27, 2024, to allow for the submission of the Registrar’s Pre-Hearing Inspection notes and Respondent’s recent photographs that had not been submitted and any written response thereto from the parties.
9. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directives and his job inspection notes. Specifically, he testified Jason Simpson performed the first job site inspection but that he performed the second from which the Directive was issued. He stated he had observed tape marks on the back patio and the stucco repairs had not been repainted. He was informed that Respondent recoated the entire back patio but Complainant complained of continuing issues. He testified that Greg Kinsfather performed a Pre-Hearing Inspection and although stucco issues had been corrected, he reported that issues still remained with the back patio.
10. Complainant Byron Keith Thomas testified, as herein relevant to the Citation, that he had wanted his patios stained but that Respondent only gave him a paint option. He stated he stained them himself but that Respondent’s stucco subcontractor damaged the stain with tape and that the patio would then not take the touch-up stain. He testified he finally agreed to Respondent painting the patios, but that the paint has blistered and pealed. He further testified that he had not scratched the finish and that the patio table is moved by picking it up, but that the chairs would be slid out to be seated. He was told by the manufacturer’s representative that the patio would require maintenance but stated that he did not want maintenance and that was why he wanted stain in the first place. He further stated there are some small defects around the perimeter area, and that there are some white spots not in the area of chairs and the table.
11. Jim Suor testified on behalf of Respondent, as herein relevant to the Citation, that he believed the remaining issues were due to Complainant moving patio furniture. He stated the bubbling issue was caused by rain, but that had since been taken care of.
12. Paul Cooper, owner of Cooper Paint, the subcontractor of Respondent, testified on behalf of Respondent that they applied the coating material that was used because it was not a hazard when wet. He stated that any exterior coating, whether stain or epoxy, would require maintenance.
13. Anthony Maga of Cooper Paint testified on behalf of Respondent that with the Arizona sun, all coatings will fade and need maintenance. He testified that he had taken recent photographs of the patio that did not show any issues, but such photographs had not been submitted into evidence. He also stated they recoated the 12 inch perimeter around the patio and there had been no problem since.
14. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on June 18, 2002. The site also reflects three Open cases, no Disciplined cases, and Five 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 in violation of Arizona Administrative Code Rule 4-9-108(a). There was no evidence presented to refute that the back patio paint was flaking. Respondent contended this was caused by Complainant’s moving of patio furniture. However, the Tribunal does not find sufficient evidence to support that position. In the Tribunal’s view, the pre-hearing inspection photographs do not depict ordinary wear and tear, particularly when the last coating work performed by Respondent was relatively recent.
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. Although Respondent made several attempts at corrective action, the recent inspection of the work reflects that it was not fully corrected. There was no evidence presented of a valid justification for failing to adequately correct the work.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) 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, Absolute Remodeling and Construction, Inc.’s, License Number 175926 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, April 16, 2024.
/s/ Roger A. Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Absolute Remodeling and Construction Inc., Respondent
dba Platinum Garage Door Sales & Service
930 E. Florence Blvd., Ste. 1-A
Casa Grande, AZ 85122
[email redacted]
Byron Keith Thomas, Complainant
10011 W. Ironwood Dr.
Casa Grande, AZ 85194
[email redacted]
By: OAH Staff