ALJDEC decisions subject to certification as final
2017A-1150-CHC-ROC · Registrar of Contractors · 2018-01-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Valerie Higgins,
COMPLAINANT,
v.
Urban Renovations Inc.,
License No: 278012, 292649
RESPONDENT.
No. 2017A-1150-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 9, 2018
APPEARANCES: Complainant Valerie Higgins appeared on behalf of herself. No one appeared on behalf of Respondent Urban Renovations.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
1. On June 21, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on
August 2, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.
2. On or about February 27, 2015, Complainant Valerie Higgins
(“Ms. Higgins”) and Respondent Urban Renovations entered into a residential remodeling contract.
3. On or about March 3, 2015, Urban Renovations began work under the contract.
4. On or about July 5, 2015, Urban Renovations stopped work.
5. On or about March 1, 2017, Ms. Higgins filed a complaint with the Registrar of Contractors (“Registrar”) alleging poor workmanship on the part of Urban Renovations.
6. On or about April 28, 2017, Investigator Randy Cason (“Investigator Cason”) conducted a job-site inspection.
7. On or about May 9, 2017, Investigator Cason issued a Directive. The May 9, 2017 Directive provides, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:
Wood floor has ‘hollow’ spots, glue residue, bad transitions, and poor installation.
Kitchen backsplash is incomplete.
Some ceiling areas that were repaired/patched have not been repainted.
Master shower wall has a bow near the bottom.
Two toilets were not replaced with new toilets.
Kitchen cabinet doors/drawers need to be adjusted.
Master closet light only works intermittently.
8. Through the Directive, the Registrar ordered Urban Renovations to remedy the alleged violations by appropriate means no later than May 26, 2017.
9. Urban Renovations failed to remedy the alleged violations by May 26, 2017.
10. On June 1, 2017, Investigator Cason conducted a compliance job-site inspection. Investigator Cason determined that Urban Renovations had not completed Directive items 1,3,4, 5 and 7.
11. On June 2, 2017, the Registrar issued a Citation and complaint alleging that Urban Renovations may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. A hearing was held on January 9, 2018.
14. No one appeared on behalf of Urban Renovations at the hearing on January 9, 2018. No one filed a request to appear telephonically on behalf of Urban Renovations. Although the hearing did not start until approximately 8:50 a.m., no one appeared on behalf of Urban Renovations through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Urban Renovations did not present any evidence to defend its license.
15. At hearing, Ms. Higgins testified that Urban Renovations performed poor work in the construction of her home. Investigator Cason conducted a prehearing inspection on January 8, 2018. Investigator Cason determined that Urban Renovations had not corrected item 1 on the Directive because the wood floor still had hollow spots.
16. Administrative notice is taken of Respondent’s prior License record on January 29, 2018. Such prior License record reflects that Respondent’s License No. 278012 was first issued on April 1, 2012, and is current. Such prior License record also reflects that there is one open complaint against Respondent, and one complaint that resulted in discipline against Respondent’s License No. 278012. Such prior License record reflects that Respondent’s License No. 292649 was first issued on June 12, 2014 and is expired. Such prior License record also reflects that there are no open complaints against License No. 292649 and no complaints that resulted in discipline against License No. 292649.
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. Arizona Administrative 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. section 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. section 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. section 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:
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.
*****
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 Urban Renovations did
not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
11. The preponderance of the evidence shows that Urban Renovations violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 278012 of Urban Renovations, Inc. shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Urban Renovations, Inc. to pay the sum of $500.00 as a civil penalty.
It is further recommended that if Urban Renovations, 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 Urban Renovations, Inc.’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Urban Renovations, Inc., as defined in Ariz. Rev. Stat. section 32-1101(A)(5), unless Urban Renovations, Inc. 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, January 29, 2018
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors