ALJDEC decisions subject to certification as final

2016A-28-ROC · Registrar of Contractors · 2016-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2016 APPEARANCES: Laura Kapilovic on her own behalf; Jason Daniel Nelson and Ryan Richard Roark for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On May 18, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 13, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent R & R Flooring (“R & R”) holds license number 296645 issued by ROC. Jason Daniel Nelson is R & R’s qualifying party and a member of the partnership. Ryan Richard Roark is also a partner. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation, ROC alleges that R & R may have violated Ariz. Rev. Stat. section 32-1154(A)(3). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke R & R’s license.[2] 5. Complainant Laura Kapilovic entered an agreement with R & R in which R & R was to install laminate flooring in Ms. Kapilovic’s house. Ms. Kapilovic paid R & R $1900, with a second $1900 to be paid on completion of the work. Ms. Kapilovic acknowledged that she had not paid R & R the remaining balance due of $1900. 6. On January 4, 2016,[3] Ms. Kapilovic filed a complaint with ROC alleging workmanship and other deficiencies on R & R’s part. In her complaint, Ms. Kapilovic wrote that she did not want R & R to do any more work at her house. 7. In response to Ms. Kapilovic’s complaint, ROC Investigator Stephen Lawton conducted a job-site inspection on February 29, 2016, and ROC issued to R & R a Directive dated March 21, 2016. 8. Mr. Lawton’s jobsite inspection notes show that the floor made a crunching sound in many locations and that there were nail holes and cracks in the baseboards. In the Directive, Mr. Lawton wrote that the crunching sounded like walking on potato chips, which is how Ms. Kapilovic described the noise in her complaint. 9. Through the Directive, ROC ordered R & R to remedy by appropriate means the noise and the baseboards. 10. Through conversation and email, Ms. Kapilovic made clear to Mr. Lawton that she would not allow R & R to return to make the repairs ROC had ordered R & R to complete. Because Ms. Kapilovic would not allow R & R access to make repairs, ROC did not in the Citation charge R & R with violating Ariz. Rev. Stat. section 32- 1154(A)(22). 11. At the hearing, Ms. Kapilovic made clear that she was unwilling to allow R & R to return to her house to make any required repairs. According to Ms. Kapilovic, there would be no point in allowing R & R that opportunity because R & R had previously said it had done the best it could. Ms. Kapilovic also testified that as a single parent, she did not feel comfortable allowing R & R back in her house.[4] 12. Mr. Nelson did not agree with the characterization that the noise was a crunching sound, but rather he thought it more of a creaking sound. Mr. Nelson and Mr. Roark were of the opinion that this could be repaired by opening gaps at corners where there is probably binding occurring. Both men thought this would be an easy fix and they made clear that R & R was willing to fix the floor and repair the baseboards. 13. Mr. Nelson and Mr. Roark testified to the effect that Ms. Kapilovic had not expressed any dissatisfaction with the work until R & R informed her that it would place a lien on her home if she did not pay her outstanding balance. Prior to that time, according to R & R, Ms. Kapilovic had stated that she would need to contact her trust-attorney to see if she could obtain the money required for payment. 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. 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). 4. 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."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. The purpose of ROC’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). 7. 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: ***** 3. Violation of any rule adopted by the registrar.

8. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 9. The preponderance of the evidence shows that R & R violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that the floor and baseboards it installed need corrective work. 10. Considering the nature of the violation and that Ms. Kapilovic has repeatedly stated that she will not allow R & R access to make any required repairs, this matter should be dismissed. RECOMMENDED ORDER IT IS ORDERED that case number 2016-28 and the related Citation are dismissed. 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, July 20, 2016. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on May 2, 2016. [2] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] The administrative record provided by ROC shows that the complaint was date-stamped as received on January 4, 2015, which is appears to be an error. [4] Mr. Nelson testified as to R & R’s willingness to have a third party present when it completed any necessary repairs to assuage Ms. Kapilovic’s concerns about allowing R & R in the house.

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