ALJDEC decisions subject to certification as final
2016A-4576-CHC-ROC · Registrar of Contractors · 2017-04-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darren Sversvold and Teryl Sands,
COMPLAINANTS,
v.
M B And J, Inc.,
License No: 273907
RESPONDENT.
No. 2016A-4576-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 4, 2017
APPEARANCES: Darren Sversvold appeared on behalf of himself. Teryl Sands did not appear. Daniel Henderson appeared on behalf of M B And J, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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1. On June 30, 2016, Complainant Darren Sversvold, (hereinafter “Mr. Sversvold”), and Respondent M B and J, Inc., (hereinafter “M B and J”), entered into a pool remodeling contract.
2. Daniel Henderson is the qualifying party of M B and J.
3. Under the contract, M B and J agreed to perform several tasks, including, but not limited to installing new plaster and concrete. Mr. Sversvold was not required to pay M B and J for the new plaster before installation under the contract.
4. The contract did not include M B and J’s business address or
a statement that the property owner has the right to file a written complaint with the
Registrar for alleged violations of A.R.S. § 32-1154(A).
5. On June 30, 2016, M B and J began remodeling Mr. Sversvold’s pool. On September 28, 2016, M B and J stopped work on Mr. Sversvold’s pool.
6. On November 16, 2016, the Registrar received a complaint from Mr. Svesvold alleging abandonment and poor workmanship on the part of M B and J.
7. On December 5, 2016, Timothy Pennington, an investigator for the Registrar, conducted a job-site investigation.
8. On December 5, 2016, Mr. Pennington issued a directive. The December 5, 2016 directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
1. Pool, decking, pool equipment, concrete not completed per contract.
9. The directive stated that M B and J was required to comply with the directive by 5:00 p.m. on December 22, 2016.
10. On January 11, 2017, Mr. Pennington conducted a compliance jobsite inspection.
11. Mr. Pennington concluded that the job was incomplete.
12. M B and J did not comply with the directive by January 11, 2017.
13. On January 12, 2017, the Registrar issued a Citation alleging that M B and J may have violated Rule 4-9-108 and thereby A.R.S. §§ 32-1154(A)(1), (A)(3), (A)(12), (A)(22) and 32-1158(B).
14. M B and J filed a timely answer to the Citation.
15. The matter was referred to the Office of Administrative Hearings.
16. On February 3, 2017, the Registrar issued a Notice of Hearing regarding the charges made in the Citation and Complaint.
17. An administrative hearing was held on April 4, 2017.
18. At hearing, Mr. Pennington testified that M B and J did not complete the work by January 11, 2017. Specifically, Mr. Pennington testified that M B and J had not installed the plaster.
19. Mr. Pennington testified that M B and J contended that Mr. Sversvold was required to pay M B and J for the plaster before installation pursuant to A.R.S. 32-1158.01 (2)(e). However, Mr. Pennington testified that A.R.S. 32-1158.01 (2)(e) regulates contractors and not the public.
20. M B and J did not dispute that his work failed to meet minimum construction standards. Mr. Henderson testified that he knew that the project took much longer than necessary. Mr. Henderson testified that he did not comply with the directive because Mr. Sversvold had not yet paid for the plaster. Mr. Henderson testified that in the industry, a contractor does not install plaster until he is paid by the customer. Mr. Henderson testified that he believed that Mr. Sversvold was required to pay him first pursuant to A.R.S. 32-1158.01 (2)(e). After having heard Mr. Pennington’s testimony at hearing, Mr. Pennington stated that he was not aware that the statue only regulated contractors. However, Mr. Henderson did not recall whether he informed Mr. Sversvold that he needed to pay for the plaster before installation. Mr. Henderson testified that if Mr. Sversvold said that he never informed him of this requirement, then Mr.Sversvold was correct. Mr. Henderson testified that after the directive expired, he installed the plaster and Mr. Sversvold paid him after the plaster was installed. Mr. Henderson testified that the work was delayed due to a variety of problems including not having the correct staff. Mr. Henderson also testified that he had major medical problems.
21. Mr. Sversvold testified that M B and J began work under the contract but did not complete it until after the directive expired. Mr. Sversvold testified that Mr. Henderson never informed him that he was required to pay for the plaster before installation.
22. I find Mr. Sversvold’s testimony to be credible.
23. On March 14, 2017, Mr. Pennington completed a prehearing inspection. Mr. Pennington concluded that the work was complete.
24. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 24, 2017, M B and J, Inc. voluntarily cancelled its license number 273907 on February 28, 2017. M B and J, Inc. has two closed cases where complaints were resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation.
25. The Registrar may impose discipline on a licensee that has had its license voluntarily canceled.
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. A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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).
A.R.S. 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:
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3. Violation of any rule adopted by the registrar.
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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. (Underscore added.)
A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The preponderance of the evidence shows that the work by M B and J
was not in compliance with the Registrar’s workmanship standards. Therefore, Mr. Sversvold established that M B and J did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
11. The preponderance of the evidence shows that MB And failed to comply with the directive without valid justification in violation of A.R.S. § 32-1154(A)(22).
12. The preponderance of the evidence shows that M B and J abandoned the contract in violation of A.R.S. § 32-1154(A)(1). M B and J did inform Mr. Sversvold that he was required to pay for plaster before installation.
13. The preponderance of the evidence showed that M B and J violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). The contract did not include M B and J’s business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order License No. 273907 of Respondent M B And J, Inc. shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require M B and J to pay the sum of $250.00 as a civil penalty.
It is further recommended that if M B and J, Inc. fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke M B and J’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with M B and J, Inc., 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, April 24, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors