ALJDEC decisions subject to certification as final

2016A-544-ROC · Registrar of Contractors · 2016-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2016, at 10:00 a.m. APPEARANCES: Richard Henry Mueller (“Complainant”) appeared on his own and his wife, Joan Mueller’s behalf; Greenspace Inc. (“Respondent”) appeared through Thomas P. Morrison, its qualifying party/officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. Complainant filed a workmanship complaint with the Arizona Registrar of Contractors (“the Registrar”). The contract that Complainant attached to his complaint did not show Respondent’s license number preceded by the acronym “ROC” or an estimated date of completion, did not apprise Complainant of his right to file a complaint with the Registrar, and did not provide the Registrar’s telephone number and website address.[1] 2. After Complainant requested a hearing, the Registrar’s Citation charged cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(2),[2] A.R.S. 32- 1154(A)(3),[3] namely A.A.C. R4-9-108,[4] and two counts under A.R.S. § 32-1154(A)(12),[5] namely A.R.S. §§ 32-1124(B)[6] and 32-1158(B).[7] 3. A hearing on the merits was scheduled on this date pursuant to Complainant’s request on his complaint against Respondent’s contractor’s license. 4. At the hearing, Complainant candidly acknowledged on the record that he refused to allow access to Respondent to comply with the Registrar’s Directive because he was so dissatisfied with Respondent’s work and because he did not entirely agree with the Registrar’s Directive. Complainant stated that he had hired another contractor to completely replace Respondent’s work and that none of Respondent’s work remained as of the date of the hearing. The Registrar’s Investigator, Stephen Lawton, confirmed that Respondent was not allowed to correct its workmanship deficiencies. 5. Administrative notice is taken of the Registrar’s public website. On July 5, 2016, Respondent’s license was current and in good standing. No discipline has been taken against the license on the Registrar’s record. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[8] Complainant bears the burden of proof to establish Respondent’s contracting law violations by a preponderance of the evidence.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] “Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.”[11] Therefore, Complainant was not allowed to present evidence on alleged workmanship deficiencies that were not included in his complaint or statutory violations that were not included in the Registrar’s Citation. Respondent’s contract did not include its license number preceded by the acronym “ROC” or an estimated date of completion, did not apprise Complainant of his right to file a complaint with the Registrar, and did not provide the Registrar’s telephone number and website address. Therefore, the record in this matter establishes that violated A.R.S. § 32- 1154(A)(12). Complainant admitted that he did not allow Respondent access to comply with the Registrar’s Citation. Normally, a contractor should be allowed to attempt to correct its deficient workmanship before its license may be disciplined.[12] Complainant acknowledged that the remedy that he sought in this matter is for Respondent to be required to reimburse the cost of hiring the second contractor to remove and replace Respondent’s work as a condition of keeping its license in good standing. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[13] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work[14] or if the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages. Neither of those two circumstances are present in Complainant’s landscaping project in this case. Complainant may attempt to recover damages against Respondent by filing an action in a judicial forum. RECOMMENDED ORDER Based on the foregoing, it is recommended that thirty days after the effective date of the final order in this matter, Respondent Greenspace Inc.’s License No. 167008 shall be suspended until it provides written proof that is satisfactory to the Registrar that it has revised its form contract to include its license number preceded by the acronym “ROC,” an estimated date of completion, notice to property owners of their right to file a complaint with the Registrar for alleged violations of A.R.S. § 32- 1154(A) within the time allowed by A.R.S. § 32-1155(A), and the Registrar’s telephone number and website address.. It is further recommended that if on or before thirty days after the effective date of the final order, Respondent provides satisfactory proof to the Registrar that it has revised its form contract to comply with the requirements of A.R.S. §§ 32-1124(B) and 32-1158(B), Complaint No. 2016-544 shall be closed for denial of access. 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 five days from the date of that certification. Done this day, July 7, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s electronic file at Intake Complaint Submittal2.pdf at 2. [2] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which 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] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [4] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [5] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [6] A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’“ on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [7] A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . .

[8] See 32-1101 et seq. [9] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [11] Webb v. Arizona Board of Medical Examiners, No. 1 CA-CV 01-0010 at ¶ 9 (Arizona Court of Appeals, Division One, June 25, 2002) (citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999)). [12] See A.R.S. § 32-1154(A)(22). This statute includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [13] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [14] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990).

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