ALJDEC decisions subject to certification as final

2015A-3855-ROC · Registrar of Contractors · 2016-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2016 and August 10, 2016 APPEARANCES: June 12, 2016, Dan Fredenberg, Complainant’s attorney; Paulla Reres, Complainant; Robert Kuhn, Respondent’s attorney; Sharon and Gary Sturm, Respondent’s representatives; D.R. McMillin, Matt Ducharme, Tony Lopez, witnesses; Matt Gunstra, Registrar of Contractors Investigator; Joann Lawler, observer. August 10, 2016, Dan Fredenberg, Complainant’s attorney; Paulla Reres, Complainant; Robert Kuhn, Respondent’s attorney; Sharon and Gary Sturm, Respondent’s representatives; Joann Lawler, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

After Complainant filed two complaints with the Registrar of Contractors against Respondent, she offered clearly inconsistent and false testimony under oath at the hearing that was set on her behalf. Therefore, Complainant was unable to establish her alleged violations of A.R.S. § § 32- 1154(A)(1), (2), or (3). Respondent admitted violations of A.R.S. § § 32- 1154(A)(9), (12), and (16), but offered arguments that should be considered in mitigation. Based on the weight of the evidence in this matter, the undersigned Administrative Law Judge recommends that no disciplinary action be imposed for the admitted violations. The complaints in this matter should be dismissed in their entirety. FINDINGS OF FACT 1. Complainant contracted with Respondent to remodel Complainant’s property. When Complainant was dissatisfied with Respondent’s work, she filed complaints with the Registrar of Contractors. Complainant’s first complaint with the Registrar of Contractors against Respondent was filed on September 25, 2014. It resulted in the issuance of a Citation against Respondent alleging potential violations of A.R.S. § 32-1154(A)(1),[1] (3),[2] and (16).[3] It is contained in Case No. 2014A-3855-ROC. 2. Complainant’s second complaint against Respondent was filed on February 4, 2016. It resulted in the issuance of a Citation against Respondent alleging potential violations of A.R.S. § 32-1154(A)(2),[4] (3),[5] (9),[6] and (16).[7] It is contained in Case No. 2016A-656- ROC. 3. At the hearing, Complainant was unable to establish violations of A.R.S. § 32-1154(A)(1), (2), or (3). Regarding the allegation of abandonment, Complainant offered contradictory evidence that made it clear that Respondent remained willing and able to complete the project. Therefore, it would not be appropriate to find that Respondent violated A.R.S. § 32-1154(A)(1). Regarding the allegation of disregarding plans, specifications, or building codes, Complainant was unable to offer consistent, credible evidence to support finding a violation of A.R.S. § 32-1154(A)(2). Regarding the allegation of poor workmanship, Complainant was unable to establish that Respondent violated A.R.S. § 32-1154(A)(3) because the project was not complete when Complainant filed the complaint. It has not been established that construction work is not a perfect science and the Administrative Law Judge takes administrative notice that contractors often make changes and correct their work at various times before completing a project. Complainant was unable to establish that the corrections Respondent needed to make were egregious enough to warrant the imposition of discipline. Further, Respondent made many attempts to make corrections and complete the work only to be interrupted or stopped by Complainant, including filing at least one injunction against Respondent and perpetrating a videotaped physical attack against Respondent’s representative Sharon Sturm wherein it was clear that Complainant was attempting to prevent Respondent from attending an inspection. It should also be noted that the parties had an agreement at the time that allowed Respondent to be at the address and prohibited Complainant from being there at the same time. Complainant denied being aware that she was not supposed to be at the project at the time, and this testimony also proved to be clearly false. Therefore, Respondent should not be found in violation of A.R.S. § 32- 1154(A)(3). 4. Respondent admitted the remaining violations but offered several arguments to be considered in mitigation. 5. Regarding the alleged violation of A.R.S. § 32-1154(A)(16) (performing pest control, plumbing and electrical work beyond the scope of the license), Respondent’s attorney argued that it had been Respondent’s understanding at that time that he was allow to do some plumbing and electrical work under A.R.S. § 32-1105(D). Respondent’s attorney also argued that pest control licensing is beyond the jurisdiction of the Registrar of Contractors because the Registrar does not issue licenses for pest control. Nevertheless, Respondent is now aware that it is not allowed to perform any work beyond the scope of the license. 6. Regarding the alleged violation of A.R.S. § 32-1154(A)(12) (using a contract that does not contain the minimum elements of a contract required by the Registrar of Contractors), Respondent’s attorney avowed that he would have Respondent submit a proper sample contract to the Registrar of Contractors within a week. 7. Regarding the alleged violation of A.R.S. § 3201154(A)(9) (aiding and abetting an unlicensed contractor), Respondent admitted that two contractors it hired for cement and roofing were no longer licensed. Respondent argued that it had worked with those contractors in the past when they were licensed and had not been aware that their licenses were not current. 8. Complainant was unable to offer any credible evidence that Respondent’s violations of A.R.S. § 32-1154(A)(9), (12), and (16) caused any direct harm in this matter and Respondent is willing to correct its practices. 9. Respondent asked if it would be allowed to complete the work on this project. Considering that Complainant physically attacked Ms. Sturm while being openly recorded indicates that any further work on this project by Respondent would be ill-advised and the Administrative Law Judge will not recommend that Respondent be required to complete the project. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32- 1156. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2- 19-119. 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). Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §§ 32-1154(A)(1), (2), (3), (9), (12) and (16). 3. Because Complainant offered clearly false testimony in this matter and prevented Respondent from attending an inspection and because Complainant interfered with Respondent’s ability to complete the project on numerous occasions, it is recommended that the Registrar of Contractors decline to find any violations of A.R.S. §§ 32-1154(A)(1), (2), or (3) and decline to require Respondent to perform any more work for Complainant. 4. Because little to no harm could be established by Complainant for the admitted violations of A.R.S. § § 32-1154(A)(9), (12), and (16), because Respondent is willing to correct its business practices and has received appropriate legal instruction from its attorney, and because Respondent’s license history indicates it is current with no other complaints against it, it is recommended that no disciplinary action be taken for those violations. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaints in this matter be dismissed in their entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, August 24, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) authorizes the Registrar of Contractors to impose disciplinary actions against contractors who abandon a project without legal justification. [2] A.R.S. § 32-1154(A)(3) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for work that does not meet workmanship standards. [3] A.R.S. § 32-1154(A)(16) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for knowingly contracting beyond the scope of their license. [4] A.R.S. § 32-1154(A)(2) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for disregarding plans, specifications, or building codes without the consent of the owner. [5] A.R.S. § 32-1154(A)(3) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for work that does not meet workmanship standards. [6] A.R.S. § 32-1154(A)(9) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for aiding and abetting an unlicensed contractor to avoid the requirements of that chapter of the law. [7] A.R.S. § 32-1154(A)(12) authorizes the Registrar of Contractors to impose disciplinary actions against contractors for failure to comply with that chapter of the law, which, at A.R.S. § 32-1158(B) requires contracts that licensed contractors utilize in the course of business to contain the required minimum elements.

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