ALJDEC - Licensing

2024A-03445-CHC-ROC · Registrar of Contractors · 2024-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rosemary Crowley,

COMPLAINANT

Sharp Manufacturing and Contracting LLC

License No. ROC 294252,

RESPONDENT

No. 2024A-03445-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 2, 2024

APPEARANCES: Complainant Rosemary Crowley appeared via Google Meet on her own behalf. William Norton appeared on behalf of Respondent Sharp Manufacturing and Contracting LLC. Registrar of Contractors Investigator Mike Wiskow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-4 and Respondent’s Exhibits 1-6 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Sharp Manufacturing and Contracting LLC, (Respondent) is the holder of License No. 294252 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 21, 2022, Rosemary Crowley (Complainant) hired Respondent to install stamped concrete overlay and the front entry to her home, in Glendale, Arizona. The total contract price was $1,542.80, and Complainant paid the same in full.

On or about March 23, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. The jobsite inspection was performed on April 19, 2024.

Investigator Wiskow then issued a Written Directive on or about April 22, 2024, which provided in pertinent part as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Tuesday, May 14th, 2024

...

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Grade to my yard was change by at least 3" or more creating an unsafe and hazardous area along walkway

Investigator’s Observation: See Complaint item #2. Repair of complaint item #2 may require the rest of the sidewalk to be adjusted. The sidewalk should follow the original grade and not be unsightly. This includes any slopes or steps in the sidewalk.

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: 2 - Ruined front door entrance by eliminating step which causes water to flow to entrance when it rains

Investigator’s Observation: The concrete at the front door entrance does not slope away from the structure properly. The concrete should slope away from the home 1/4" per foot.

Contractor should repair by appropriate means. Repair of this complaint item may require the rest of the sidewalk to be repaired as no unnecessary slopes or steps should be in the sidewalk.

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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - Busted front yard lighting system that I had for 22 years. Told me too bad. That happens.

Investigator’s Observation: No repairs are required as the contract indicates unmarked electrical or irrigation may be damaged.

Governing Rule:

Compliance Item: 4 - Busted front yard drip system that I had for 22 years.. Told me too bad. That happens.

Investigator’s Observation: No repairs are required as the contract indicates unmarked electrical or irrigation may be damaged.

Governing Rule:

Compliance Item: 5 - They had me sign "complete satisfaction" paperwork and pay them balance before they even started the work on 9/6/22.

Investigator’s Observation: Not a workmanship issue.

Governing Rule:

Compliance Item: 6 - It was 6:30am when they arrived on 9/6/22. I didn't want to sign anything or pay balance until work was completed.

Investigator’s Observation: Not a workmanship issue.

Governing Rule:

Compliance Item: 7 - CoCo (supervisor) said I had to sign per contract.

Office didn't open until 9am, so no one to talk to.

Investigator’s Observation: Not a workmanship issue.

Governing Rule:...

(All errors contained in the original)

Investigator Wiskow conducted a Compliance Jobsite Investigation on May 14, 2024. In his notes regarding the same, Investigator Wiskow noted the following in pertinent part:

Compliance Jobsite General Notes: Audio recorded with ROC Genesys Internet Phone System Respondent stated “I don’t know what to do with it” when asked if directive was completed on May 14, 2024.

Called complainant and got no answer. Based on the call to the respondent on May 14th, 2024 and the correspondence between the respondent and several individuals with the ROC concerning his request for an appeal of the directive, all evidence suggests that the directive was not completed.

Compliance Findings

Compliance Item: 1 - Grade to my yard was change by at least 3" or more creating an unsafe and hazardous area along walkway

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. *Not Completed

Compliance Item: 2 - Ruined front door entrance by eliminating step which causes water to flow to entrance when it rains

Investigator’s Observation: The concrete at the front door entrance does not slope away from the structure properly. The concrete should slope away from the home 1/4" per foot.

Contractor should repair by appropriate means. Repair of this complaint item may require the rest of the sidewalk to be repaired as no unnecessary slopes or steps should be in the sidewalk.

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. *Not Completed...

(All errors contained in the original).

On May 31, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about June 14, 2024, the Registrar received Respondent’s Answer.

On or about June 25, 2024, a Notice of Hearing was issued setting a hearing on August 2, 2024, at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on June 3, 2024 and July 29, 2024.

At hearing, Investigator Wiskow testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Wiskow testified that while complaint item 1 was in compliance, complaint item 2 was not done per International Residential Code (IRC) section R401.3, as the concrete did not slope away from the home 1⁄4 inch per foot.

In addition, Investigator Wiskow testified that when he referenced “unnecessary slope” in the directive, he was referring to his own observations and whether it looked awful, rather than a specific measurement.

Further when questioned by Mr. Norton about whether IRC section R311.3 should have applied rather than R401.3, Investigator Wiskow testified that it did not matter because there was a negative pitch which did not allow for proper drainage.

Investigator Wiskow also testified that he did not perform a “flood test” as there was already a puddle of water when he was at the jobsite inspection, but he did not know how long that water had been present.

Ms. Crowley testified that the walkway height was 3 to 31⁄2 inches above her yard which represented a tripping hazard. She also testified that water was flowing to her front door, and when the monsoon rains occur, there was almost flooding in her house.

William Norton testified on behalf of Respondent. He testified that he contacted the City of Glendale planning department to determine the drainage plan for Complainant’s neighborhood. He was informed that that was no drainage plan required as the neighborhood was grandfathered in, however, a representative at the planning department informed him that Glendale would look to IRC R311.3 to determine the slope.

Mr. Norton testified that that section required the concrete to be as level as possible, but it still should drain.

Next, Mr. Norton testified that he performed a flood test and after 12 minutes the water had almost dissipated. Also, Mr. Norton testified that because the stamped concrete was not smooth there may be some minor puddling, but not outside of workmanship standards.

Finally, Mr. Norton argued that they were in compliance with workmanship standards as well as IRC R311.3 for their installation, and therefore, no corrective work was necessary for Complaint item 2. Further, because Complaint item 2 needed no repair, then Complaint item 1 needed no repair, and as such, the complaint should be dismissed.

Administrative notice was taken of Respondent’s prior License record on August 14, 2024. Such prior License record reflected that Respondent’s License No. 294252 was first issued on September 9, 2014, and reflected that there was one open case, namely the present case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano 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).

Complainant has not proven by a preponderance of the evidence that the work performed by Respondent was not performed according to code, and not completed in a workmanlike manner. The tribunal disagrees with Investigator Wiskow’s reliance on IRC R401.3, over IRC R311.3, as it would be more prudent to rely on the section which specifically applied to exterior landing at doors, rather than foundations as R401.3 contemplates. Further, the tribunal finds that no flooding test occurred therefore an accurate determination of drainage could not be proven. Therefore, the tribunal finds no violation of A.R.S. § 32-1154(A)(2)(a), or A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

Thus, because there was no violation of A.R.S. § 32-1154(A)(2)(a), or A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), there can be no violation of A.R.S. § 32-1154(A)(22), for failure to take corrective action.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar dismiss and close case 2024-03445.

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, August 14, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Rosemary Crowley

[email redacted]

Sharp Manufacturing and Contracting LLC

[email redacted]

By: OAH Staff