ALJDEC decisions subject to certification as final

2013A-4020-ROC · Registrar of Contractors · 2014-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2014, at 8:00 a.m. APPEARANCES: Complainant the Arizona Registrar of Contractors was represented by John R. Tellier, Esq., Assistant Attorney General; Respondent Bri Sto Development Corporation failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On October 16, 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-3.118092-R to Bri Sto Development Corporation (“Respondent”). Roger Lee Briggs was listed as Respondent’s officer and qualifying party. 2. On February 28, 2012, the Registrar approved Respondent’s application for exemption from Qualifying Party.[1] 3. On or about July 25, 2012, Respondent submitted to the Registrar an Ownership/Personnel Change Form advising the Registrar of a 100% transfer of ownership of Respondent to Alexander Briggs.[2] 4. On or about November 27, 2012, Craig Miller (“Mr. Miller”) filed a complaint with the Registrar alleging poor work and abandonment by Respondent in performance of its April 6, 2012 contract to perform a remodeling project at Mr. Miller’s residence located at 6302 E. Mountain View Rd., Paradise Valley, Arizona for $66,704.11.[3] 5. Mr. Miller attached to the complaint that he filed with the Registrar a copy of his contract with Respondent.[4] The April 6, 2012 contract did not show Respondent’s business address, did not apprise Mr. Miller of his right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), did not provide the Registrar’s telephone number or website address, and did not show Respondent’s license number preceded by the acronym ROC. 6. The Registrar designated Mr. Miller’s complaint as Case No. 2012- 5746 and assigned it to Inspector Jeff Fleetham for investigation. Inspector Fleetham performed a jobsite inspection and on December 21, 2012, issued a Corrective Work Order that required Respondent with 30 calendar days to correct by appropriate means certain specific items in Mr. Miller’s complaint, in relevant part as follows: 1. Remove and install entire wood flooring: 2000 sq ft were not installed correctly and numerous issues with uneven floor, boards coming up, floor movement. o Wood not installed per manufacturer’s installation instructions. ▪ Respondent shall correct by appropriate means. . . . .

5. Sink in bathroom: Not level. o Per jobsite agreement the Respondent will correct by appropriate means. ▪ Respondent shall correct by appropriate means. . . . .

7. Sliding screen Door: not properly installed – does not work. o Per jobsite agreement the Respondent will correct by appropriate means. ▪ Respondent shall correct by appropriate means.

8. Painting of garage door: sides and seams not painted. o Per jobsite agreement the Respondent will correct by appropriate means. ▪ Respondent shall correct by appropriate means. . . . .

10. Addendum – Master Bath “hers” sink has hot and cold water crossed. o Per jobsite agreement the Respondent will correct by appropriate means. ▪ Respondent shall correct by appropriate means.[5]

7. On November 26, 2013, the Registrar on its own motion issued a Citation and Notice of Hearing against Respondent’s License No. B- 3.118092-R based on Respondent’s performance of contracting work on Mr. Miller’s project. The Citation and Notice of Hearing charged in four counts possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(13) (two counts), namely, A.R.S. § 32-1124(B) and A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(23). 8. The Registrar referred its own motion complaint to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 9. The Registrar’s Citation and Notice of Hearing set a hearing before the OAH on January 13, 2014, at 8:00 a.m. The Registrar mailed a copy of the Citation and Notice of Hearing to Respondent at its address of record. 10. Alex Briggs filed a timely written answer to the Citation and Notice of Hearing on Respondent’s behalf, admitting the two charged violations of A.R.S. § 32-1154(A)(13) because the documents it used on the Mr. Miller’s project did not show its contractor’s license number or include other elements that A.R.S. § 32-1158(B) required. Respondent’s written answer denied any workmanship deficiencies, but also affirmatively alleged that Mr. Miller had denied reasonable access to comply with the Registrar’s Corrective Work Order. 11. An evidentiary hearing was held on January 13, 2014. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed thirty minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. 12. The Registrar submitted one exhibit and presented the testimony of two witnesses: (1) Mr. Miller; and (2) Investigator Randy Cason. 13. Mr. Miller testified that Alex Briggs was present for Inspector Fleetham’s jobsite inspection. Mr. Miller testified that of the five items that the Corrective Work Order required Respondent to correct, only the crossed hot and cold water lines for the “hers” sink in the master bathroom (Item No. 10) had been corrected. 14. Mr. Miller testified that Alex Briggs had said that he was moving to Wisconsin. Mr. Miller stated that Respondent had changed its telephone number and that Respondent had not returned his emails. 15. Mr. Miller testified that Respondent had complete access to his home to perform repairs after the Corrective Work Order was issued. 16. Investigator Cason testified that he performed a pre-hearing inspection on January 14, 2014. Investigator Cason testified that the Corrective Work Order required Respondent to correct five of Mr. Miller’s ten items of complaint. Inspector Cason testified that of the five items, only Item No. 10 on the Corrective Work Order had been corrected at the time of the pre-hearing inspection. 17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 30, 2014. Such prior License record reflects that Respondent’s License No. B- 3.118092-R is current, but that the License was administratively suspended between October 17, 2012, and October 22, 2012, for lack of bond. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[6] 2. The Citation and Notice of Hearing that the Registrar mailed to Respondent its address of record was reasonable, and it appears that it actually received notice of the hearing.[7] 3. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[8] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] 4. The Registrar established that Respondent performed work on Mr. Miller’s project that did not comply with the Registrar’s or industry workmanship standards in violation of A.R.S. § 32-1154(A)(3),[11] namely A.A.C. R4-9-108.[12] 5. Respondent did not submit any evidence to establish the affirmative defense that Mr. Miller failed to provide reasonable access for Respondent to perform repairs. Mr. Miller credibly testified that he provided such access. Moreover, it appears unlikely that Mr. Miller would have allowed Respondent access to repair the crossed hot and cold water lines for the “hers” sink in the master bathroom (Item No. 10), but denied access for it to repair the other four items that the Corrective Work Order required it to correct. Therefore, the Registrar established that Respondent failed to comply with the December 21, 2013 Corrective Work Order in Case No. 2012-5746 in violation of A.R.S. § 32-1154(A)(23).[13] 6. Respondent admitted in its written answer that it did not include its license number preceded by the acronym ROC on its April 6, 2012 contract with Mr. Miller. The Registrar established that Respondent violated A.R.S. § 32-1154(A)(13),[14] namely A.R.S. § 32-1124(B).[15] 7. Respondent admitted in its written answer that it did not include all the terms required by A.R.S. § 32-1158(B) in its April 6, 2012 contract with Mr. Miller. Respondent did not include on its April 6, 2012 contract its license number or business address and did not advise Mr. Miller of his right to file a complaint with the Registrar for Respondent’s violations of A.R.S. § 32-1154(A). The Registrar established that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158(B).[16] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent Bri-Sto Development Corporation’s License No. B-3.118092-R shall be suspended for two business days. It is further recommended that Respondent shall be required to pay the sum of $500.00 as a civil penalty for its violation of A.R.S. § 32- 1154(A)(23) pursuant to A.R.S. § 32-1154(D). 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 final Order in this matter, the Registrar shall 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 any outstanding prior civil penalty. 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, January 30, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit 2 attached to the Registrar’s Citation and Notice of Hearing. [2] See Exhibit 3 to the Registrar’s Citation and Notice of Hearing. [3] See Exhibit 4 to the Registrar’s Citation and Notice of Hearing. [4] See id. [5] The Registrar’s Hearing Exhibit 2; see also Exhibit 5 to the Registrar’s Citation and Notice of Hearing. [6] See A.R.S. § 32-1154(A). [7] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [8] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] See A.A.C. R2-19-119(B)(2). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [11] 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.” [12] 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.” [13] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this 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.” [14] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [15] A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’“ on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [16] A.R.S. § 32-1158(B) provides 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 after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the 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 ten point bold type. . . .

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826