ALJDEC decisions subject to certification as final

2015A-2802-ROC · Registrar of Contractors · 2016-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2016 APPEARANCES: Nartica Cross on her own behalf; Respondent did not appear until after the hearing had concluded ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On December 18, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 8:00 a.m. January 29, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent C Mack Electric, Inc. (“C Mack”), holds license number CR11.294543-D issued by ROC.[1] Chris Edward McLemore is the qualifying party. 3. No representative for C Mack appeared at the scheduled time, and the matter was convened in its absence at about 8:15 a.m. An entry in the Office of Administrative Hearings’ (“OAH”) docket for this matter shows that a representative for C Mack appeared at OAH at about 9:15 a.m. (after the hearing had concluded) and informed OAH that he had gone to ROC’s building prior to his appearance at OAH. 4. C Mack entered a verbal contract with Complainant Nartica Cross in which it agreed to add additional outlets, install scones, and install canned or recessed lighting in the ceiling. Ms. Cross testified that all of this work was to be done in the master bathroom. 5. Ms. Cross was not satisfied with C Mack’s work and, on July 29, 2015 Ms. Cross filed with ROC a Complaint against C Mack. 6. ROC inspector Jack Grimm conducted a jobsite inspection, and on August 20, 2015, he issued a Directive to C Mack. The Directive required C Mack to repair switches that were not working in the kitchen, to install the sconces, and to repair one of the recessed lights. 7. Mr. Grimm issued and Addendum to the Directive on September 23, 2015, that instructs C Mack to obtain a permit from the City of Phoenix. 8. The City of Phoenix “red tagged” the job on October 5, 2015, because there was no permit. 9. Mr. Grimm conducted a compliance inspection on November 4, 2015. Mr. Grimm’s notes show that the kitchen switches were repaired, but the other items were not properly repaired because there had been no permit obtained by either C Mack or Ms. Cross and the electrical circuit(s) for the sconces and the recessed lighting were installed but not properly functioning. 10. On November 20, 2015, ROC issued a Citation alleging that C Mack may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), (A)(22). The Citation shows that ROC has authority to suspend or revoke C Mack’s license if the allegations contained therein are proven at the hearing. 11. In its Answer to the Citation, C Mack wrote that it had been required by Mr. Grimm to make repairs in areas that were not part of its scope of work, and that other tradesmen who were working at the home were creating a hazard by overloading the circuits while he was at the house. 12. Ms. Cross testified that she had been required to hire another contractor to complete the work at her house. 13. Ms. Cross testified that Mr. McLemore was aware that he had created a short in the wiring, which she said was evidenced by her exhibits. These exhibits do not support that assertion, but rather show only that Mr. McLemore informed Ms. Cross that there was a short. 14. Ms. Cross’s exhibits show that the short was caused by “a screw going through the wire from medicine cabinet.” See Christian Brothers contract dated November 7, 2015. 15. There was no evidence adduced to show that C Mack was responsible for this condition, whereas the evidence shows that Ms. Cross had had the medicine cabinet relocated and that there were other contractors or handymen working in the area of the bathroom at issue. 16. Christian Brothers repaired the short.[2] The Christian Brothers contract also shows its recommendation that Ms. Cross should replace all the breakers in the house. 17. Ms. Cross also testified that another contractor was of the opinion that C Mack had created the short by running too many outlets on one circuit. The exhibits submitted by Ms. Cross do not support this testimony. A document from Sunbelt Electric shows that there was a short in the circuit and that that electrician’s opinion was that there a new circuit should have been run, but it does not offer any opinion as to the cause of the short. 18. Ms. Cross testified that there were still drywall repairs required at her home, but she acknowledged that the areas requiring repair were areas that one of the other contractors worked on (albeit to complete the C Mack job). CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. 3. Violation of any rule adopted by the registrar. ***** 22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. The preponderance of the evidence shows that C Mack violated Ariz. Rev. Stat. section 32-1154(A)(2) and (A)(22) by failing to obtain the required permit and failing to correct that failure after the Directive was issued. 11. The preponderance of the evidence does not show that C Mack violated Ariz. Rev. Stat. section 32-1154(A)(3) because the evidence shows that a number of tradesman or handymen were working in the area of concern and there is insufficient evidence to show that C Mack was at fault for any of the alleged workmanship deficiencies. 12. Because C Mack violated Ariz. Rev. Stat section 32-1154(A), it is subject to discipline. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order issued in this matter, C Mack Electric, Inc.’s license number CR11.294543-D is suspended for one day. 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 is forty days after the date of that certification. Done this day, February 11, 2016. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows C Mack’s license number as 294543. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used. [2] Ms. Cross’s exhibits show that George Brazil Services performed “troubleshoot[ing] bathroom outlets in three bathrooms” on November 5, 2015.

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