ALJDEC decisions subject to certification as final
2017A-151-CHC-ROC · Registrar of Contractors · 2017-05-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Teresa Preston,
COMPLAINANT,
v.
Taden Construction LLC,
License No:
264798
RESPONDENT.
No. 2017A-151-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 10, 2017
APPEARANCES: Complainant Teresa Preston appeared on behalf of herself. No one appeared on behalf of Respondent Taden Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On March 30, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on May 10, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
Taden Construction, LLC, (hereinafter “Taden”), holds license number 264798 issued by the Registrar.
The Notice of Hearing shows that the hearing was set to consider the charges made in the citation and complaint.
Through the citation, the Registrar alleges that Taden may have violated A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); A.R.S. § 32-1158(B); A.R.S. § 32-1154(A) (2), (A) (12) and (A)(22). The citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Taden’s license.
On or about September 16, 2016, Taden and Teresa Preston, (hereinafter “Ms. Preston”), entered into an agreement for the remodeling of Ms. Preston’s home located at 20447 N. 37th Avenue in Glendale, AZ. Taden agreed to perform several tasks including, but not limited to, cabinet installation and drywall application.
Taden did not provide Ms. Preston with a contract which advised her
that she had a right to file a complaint with the Registrar against Taden for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and Taden not provide the Registrar’s telephone number or website address.
On or about October 3, 2016, Taden began work on the property.
On January 10, 2017, the Registrar received a complaint from Ms. Preston alleging deficiencies on Taden’s part.
On February 2, 2017, in response to Ms. Taden’s complaint, Registrar Investigator Russell Reed, (hereinafter “Mr. Reed”), conducted a job-site inspection.
On February 7, 2017, Mr. Reed sent Taden a directive from the Registrar. The directive provided, 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:
Cabinets installed on top of free floating floor.
Complete flooring, to include trim pieces and areas where flooring meets walls or carpet in all areas where flooring was installed.
Baseboards are not painted consistently and have exposed nails.
Cabinets have defects in sides and trim pieces.
Drywall texture is not consistent throughout remodeled area, does not match existing drywall texture.
Flat ceiling curves down where it meets vaulted ceiling along kitchen sink wall.
Paint on walls and ceiling is not consistent.
Outlets installed along kitchen sink wall are not level and are not flush with drywall.
Outlet under sink does not have cover plate.
Damage to bathroom vanity was not repaired correctly.
The February 7, 2017 directive stated that the above work had to be
completed by 5:00 p.m. on February 27, 2017.
On March 6, 2017, Mr. Reed performed a compliance inspection at
Ms. Preston’s property. Mr. Reed found that Taden failed to correct the items listed on the directive, except for item nine.
13. A hearing was held on May 10, 2017.
14. At hearing, Ms. Preston testified that Taden performed substandard work and only corrected one item listed in the directive.
15. I find Ms. Preston’s testimony to be credible.
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.” 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. § 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:
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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 Taden
was not in compliance with the Registrar’s workmanship standards. Therefore, Ms. Preston established that Taden 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 Taden violated A.R.S. § 32-1154(A)(22) by failing to comply with the directive.
12. The preponderance of the evidence shows that Taden violated A.R.S. § 32-1154(A)(12) by departing from the contract plans.
13. The preponderance of the evidence shows that Taden violated A.R.S. § 32-1158(B) by failing to provide Ms. Preston with a written contract which advised her of her right to file a complaint with the Registrar against Taden for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B). Furthermore, Taden did not provide Ms. Preston with a written contract that advised her of the Registrar’s telephone number or website address.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 264798 of Taden Construction, LLC shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Taden Construction, LLC to pay the sum of $500.00 as a civil penalty.
It is further recommended that if Taden Construction, LLC 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 Taden Construction, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Taden Construction, LLC, as defined in A.R.S. § 32-1101(A)(5), unless Taden Construction, LLC 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, May 30, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors