ALJDEC decisions subject to certification as final

2011A-162-ROC · Registrar of Contractors · 2011-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2011, at 8:00 a.m. APPEARANCES: Complainant Linda Winther appeared on her own behalf; Respondent Handi Hands, L.L.C. appeared through Jeff Nelson, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In October 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC225187, Class C-62 for residential minor home improvements to Handi Hands, L.L.C. (“Respondent”). On or about January 10, 2011, the Registrar received a complaint against Respondent from Linda Winther (“Complainant”) regarding Respondent’s painting and other repairs at Complainant’s late mother’s house at 14330 West Las Brizas Lane, Sun City West, Arizona that Complainant was preparing to place on the market. According to the complaint, Complainant hired a second contractor to repair Respondent’s work because she “was unwilling to have him attempt to fix anything that he had done.” Complainant requested that the Registrar require Respondent to reimburse Complainant the $468.34 that she had paid to the second contractor. On or about March 1, 2011, Complainant asked the Registrar to issue a citation against Respondent. On April 28, 2011, the Registrar issued a Citation and Complaint against Respondent, charging A.R.S. § 32-1154(A)(1)[1] and (3), namely A.A.C. R4-9- 108.[2] Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that an unlicensed handyman had modified its work. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on July 20, 2011, at the OAH. Complainant appeared. Respondent appeared through its qualifying party and member, Jeff Nelson. At the beginning of the hearing, the Administrative Law Judge read the provisions A.R.S. § 32-1155(C) onto the record and asked Complainant if she had hired another contractor to repair Respondent’s work before she filed the complaint to the Registrar, and if the second contractor’s repairs prevented Respondent from inspecting its work after she filed the complaint. After Complainant answered both questions under oath in the affirmative, the Administrative Law Judge on her own motion concluded the hearing, informing the parties that under the undisputed facts and A.R.S. § 32-1155(C), she could only recommend that the Registrar dismiss the complaint. CONCLUSIONS OF LAW A.R.S. § 32-1155(C) provides as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use.

“Use of the word ‘shall’ in a statute ordinarily demonstrates a legislative intent to impose a mandatory obligation.”[3] Any other construction of A.R.S. § 32-1155(C) would reward a property owner who resorts to self-help against a licensed contractor, and would prevent the Registrar from using its own standards to investigate and if appropriate, to remedy a complaint.[4] Because the second contractor modified Respondent’s work before Complainant submitted her complaint to the Registrar, and because Respondent was not provided an opportunity to inspect its work within fifteen days of receiving notice of Complainant’s complaint, the Registrar should dismiss Complainant’s complaint. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 2011-162 against Respondent Handi Hands, L.L.C.’s License No. ROC225187. 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 40 days from the date of that certification. Done this day, August 1, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] Verma v. Stuhr, 223 Ariz. 144, 153, 221 P.3d 23, 32 (App. 2009). [4] Cf. J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984) (the Registrar may not award money damages).

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