ALJDEC decisions subject to certification as final
2016A-3009-CHC-ROC · Registrar of Contractors · 2017-10-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Angel Jaramillo,
COMPLAINANT,
v.
Ayala Remodeling, Inc.,
License No: 222589
RESPONDENT.
No. 2016A-3009-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 21, 2017
APPEARANCES: Complainant Angel Jaramillo appeared on behalf of herself. No one appeared on behalf of Respondent Ayala Remodeling, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On July 31, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on September 21, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
No representative for Respondent Ayala Remodeling, Inc., (hereinafter “Ayala”), appeared at the scheduled time and the matter was convened in its absence at about 1:20 p.m.
Ayala holds license number 222589 issued by the Registrar.
Jose Pablo Ayala Carrillo is Ayala’s qualifying party.
On or about June 29, 2016, Complainant Angel Jaramillo and Ayala entered into residential remodeling construction contract.
Ayala performed work on Ms. Jaramillo’s home from June to August of 2016.
On or about August 15, 2016, Ms. Jaramillo filed a Complaint against Ayala alleging poor work in connection with a residential remodeling contract.
8. On or about June 16, 2017, Registrar Investigator Steve Nelson performed
a job site inspection.
9. On or about June 16, 2017, the Registrar issued a Directive to Ayala. The June 16, 2017 Directive provides, in relevant part as follows:
You are hereby directed to remedy the following violations by appropriate means:
Leak on Carport roof/ missing flashing.
Carport (slab) drains towards house.
Metal siding on front and back of house needs to be extended down to match existing.
Complete flashing at front eave.
10. The Directive required Ayala to provide the Registrar with written proof that it had made the required corrections by 5:00 p.m. on July 7, 2017.
11. Ayala corrected all of the items listed on the Directive, except for item 2.
12. On or about July 11, 2017, the Registrar issued a Citation alleging that Ayala may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
13. On or about July 26, 2017, the Registrar received a response from Ayala. The July 26, 2017 response provides, in relevant part, as follows:
I’M GOING TO SAY WHY MY LICENSE
SHOULD NOT BE SUSPENDED OR REVOKED.
I HAVEN’T HAD ANY COMPLAINTS IN THE LAS T10 YEARS
I KNOW THAT’S NOT AN EXCUSE, BUT EVERYONE DESERVES A
SECOND CHANCE
ON JULY 5TH I TOOK CARE OF 3 OF THE ISSUES. ONLY THE #2
I COULDN’T’ FIX IT BECAUSE THERE WASN’T ENOUGH TIME.
I’M STILL WORKING ON IT
ALL I NEED IS A SECOND CHANCE TO MAKE THINGS RIGHT.
14. The Registrar referred the matter to the Office of Administrative Hearings,
an independent agency, to schedule an evidentiary hearing.
15. A hearing was held on September 21, 2017.
16. No one appeared on behalf of Ayala at the hearing on June 21, 2017. No one filed a request to appear telephonically on behalf of Ayala. Although the hearing did not start until approximately 1:20 p.m. no one appeared on behalf of Ayala through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Ayala did not present any evidence to defend its license.
17. At hearing, Ms. Jaramillo testified that Ayala performed poor work on her
home.
18. Administrative notice is taken of Respondent’s prior License record as
reflected on the Registrar’s public website on October 11, 2017. Such prior License record reflects that Respondent’s License 222589 was issued on August 2, 2006, and is current with one open complaint against Respondent’s license. Such prior License record also reflects that there have been no prior complaint filed against Respondent’s license.
CONCLUSIONS OF LAW
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.
“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).
“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).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
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:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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12. Failure in any material respect to comply with this chapter.
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9. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Admin. Code R4-9-108, and thereby of Ariz. Rev. Stat section 32-1154(A)(3).
10. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 222589 of Ayala Remodeling, Inc., shall be suspended for a period of 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 will be 40 days from the date of that certification.
Done this day, October 11, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors