ALJDEC - Licensing
2023A-04509-CHC-ROC · Registrar of Contractors · 2023-10-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Stephen James Sievert
COMPLAINANT,
v.
G Salisbury and Assoc Inc
License No. ROC 171870,
RESPONDENT.
No. 2023A-04509-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 27, 2023
APPEARANCES: Complainant Stephen James Sievert represented himself. Taylor R. Nelson represented Respondent G Salisbury and Assoc Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Respondent G Salisbury and Assoc, Inc. holds license number 171870 issued by the Arizona Registrar of Contractors (Registrar).
Gersh Salisbury is the qualifying party for Respondent.
Respondent build a new home located at 1800 S. Crooked H Trail, Dewey, Arizona, 86327 (the home).
Respondent completed construction on the home in July of 2021.
In July of 2021, Complaint Stephen James Sievert purchased the home for the amount of $475,000.
On or about April 17, 2023, the Arizona Registrar of Contractors received a complaint from Complainant alleging poor workmanship on the part of Respondent.
On or about June 8, 2023, Registrar Investigator David Thomas conducted an initial job-site inspection.
On June 30, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct Complaint Item 1, by appropriate means, no later than 5:00 p.m. by July 28, 2023:
Compliance Item: 1 - Vinyl flooring is peaking and deteriorating due to poor installation and moisture through concrete slab that was not sealed.
Investigator’s Observation: This complaint item is verified. Areas of the flooring throughout the house has evidence of excessive concrete slab moisture. Product manufacturer installation guidelines state a calcium chloride test and an RH test is necessary prior to floor installation. No moisture testing was conducted per respondent. Respondent shall identify moisture issue and correct flooring by appropriate means.
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.
The Registrar further notified Complainant and Respondent of the following:
In order to use the administrative process offered by the Registrar, a property owner must provide reasonable access to allow the contractor to fix their work as directed by the Registrar in a Written Directive. Complainants may not put any additional, unnecessary restrictions on the Respondent above and beyond the initial contract requirements agreed upon at the beginning of the project.
After the Directive was issued, Respondent may no attempt to correct Complaint Item 1 by the due date of July 28, 2023.
On or about August 3, 2023, the Registrar issued a Citation against Respondent’s license. Through the Directive, the Registrar alleged that Respondent have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) - R4-9-108(A); A.R.S. § 32-1154(A)(22).
Respondent filed a timely answer to the Citation
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
At hearing, Complainant testified on behalf of himself. Respondent presented the testimony of Gersh Salisbury.
Investigator Thomas testified consistently with his job-site inspection notes and the Directive.
Mr. Salisbury asserted Complainant was often times hostile and that it was difficult to work Complainant. There was no evidence presented that Complainant physically attacked or threatened to attack Respondent or any of its employees.
Mr. Salisbury also stated that prior to the filing of the complaint, Complainant did not allow Respondent to correct the deficient work in the manner proposed by Respondent. However, Respondent made no attempt to correct Complainant Item 1 after the Directive was issued.
17. Complainant explained that Respondent performed poor work in the construction of the home and that Respondent did not comply with the Registrar’s Directive. Complainant refuted that he was hostile with Mr. Salisbury or Respondent’s employees.
18. Administrative notice is taken of Respondent’s prior License record on October 17, 2023. Such prior License record reflects that Respondent’s License No. 171870 was first issued on February 12, 2002, and is active. Such prior License record reflects that there were no other open against Respondent’s license. Such prior License record also reflects that Respondent has no disciplinary history.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See ARIZ. ADMIN. CODE § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
5. The preponderance of the evidence shows that Respondent failed to correct Complaint Item 1 without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license number 171870 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any 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, October 17, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
Taylor Nelson, Esq.
[email redacted]
G Salisbury and Assoc Inc
[email redacted]
Stephen James Sievert
[email redacted]
David Thomas
[email redacted]
By: OAH Staff