ALJDEC decisions subject to certification as final
2017A-1535-CHC-ROC · Registrar of Contractors · 2017-09-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Eva Maria Mora,
COMPLAINANT,
v.
Arizona Energy Savers & Home Improvements LLC,
License No: 272004
RESPONDENT.
No. 2017A-1535-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 24, 2017
APPEARANCES: Complainant Eva Maria Mora appeared on behalf of herself. No one appeared on behalf of Arizona Energy Saves & Home Improvements LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On May 30, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on July 20, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
No representative for Respondent Arizona Energy Saves & Home Improvements LLC, (hereinafter “Arizona Energy”), appeared at the scheduled time and the matter was convened in its absence at about 8:50 a.m.
Arizona Energy holds license number 272004 issued by the Registrar.
On or about October 19, 2016, Arizona Energy and Complainant Eva Maria Mora entered into a home remodeling agreement wherein Arizona Energy would install a three wall sunroom and a high quality air conditioning unit. The amount of the contract was $27,495. Ms. Mora gave Arizona Energy a down payment in the amount of $17,000.
The expected date of completion was December 1, 2016.
In January of 2017, Arizona Energy delivered the 3 wall sunroom to Ms. Mora. However, Arizona Energy never installed the sunroom.
6. On March 20, 2017, the Registrar received a complaint filed by
Ms. Mora against Arizona Energy alleging incomplete and poor work in connection with a residential remodeling contract.
7. On or about March 23, 2017, the complaint was assigned to the
Matt Gunstra, an investigator for the Registrar.
8. On or about April 14, 2017, Mr. Gunstra conducted an job site inspection.
9. On April 18, 2017, Mr. Gunstra issued a Directive. The April 18, 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 2, 2017.
You are hereby directed to remedy the following violations by appropriate means:
Complaint Item 1: The company AZ Energy Savers has not inspected the bad workmanship of the sunroom. They have not tried to fix the damage. They have not finished the installation of the ACs. They are not willing to finish the project.
-Respondent shall complete the project per written and verbal agreements in the time allotted in this Directive.
Complaint Item 2: Structural wall members were not installed and improper sealant technique used to caulk. Problem is existing on all wall unions.
Complaint Item 3: Improper fill sections.
Complaint Item 4: Top structural track is cut at support member.
Complaint Item 5: Door center mullion is cut and installed incorrectly
Complaint Item 6: All main sealant points are done with improper sealant
Complaint Item 7:
Complaint Item 8: Improper fit and finish on all trim work
Complaint Item 9: Windows are not installed correctly into H channels
Complaint Item 10: Windows are not lined up and installed improperly causing sagging and improper appearance
Complaint Item 11: Air conditioners in contract never installed
NOTE: Prior to any corrective work the Respondent shall obtain any required permits from the local authority and comply with any inspections or orders resulting thereof.
Respondent shall correct all substandard work and perform work per ROC standards, manufacturer installation instructions, building code and industry standard. For more information about workmanship defects observed during the site inspection please contact the assigned investigator. Only employees of the company issued the license or properly licensed subcontractors may perform work.
10. Arizona Energy did not perform any corrective work by the May 2, 2017
deadline.
11. On April 19, 2017, the Registrar issued a Citation alleging that Arizona
Energy may have violated A.R.S. § 32-1154(A)(1) and (A)(9); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).
12. Arizona Energy filed a timely response alleging that it had filed for Chapter 7 Bankruptcy.
13. The Registrar referred the matter to the Office of Administrative Hearings,
an independent agency, to schedule an evidentiary hearing.
14. A hearing was held on June 21, 2017.
15. No one appeared on behalf of Arizona Energy at the hearing on June 21, 2017. No one filed a request to appear telephonically on behalf of Arizona Energy. Although the hearing did not start until approximately 1:20 p.m. no one appeared on behalf of Arizona Energy through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Arizona Energy did not present any evidence to defend its license.
16. At hearing, Ms. Mora testified that Arizona Energy did conducted poor work and did not install an air conditioning unit. Ms. Mora also testified that Christopher Joseph Smith held himself out to be an employee of Arizona Energy. However, he was not an employee of the company and was an unlicensed contractor.
17. I find Ms. Mora’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. 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.
*****
12. Failure in any material respect to comply with this chapter.
*****
9. The preponderance of the evidence shows that Arizona Energy abandoned the contract without legal excuse in violation of Ariz. Rev. Stat. section 32-1154(A)(1).
10. The preponderance of the evidence shows that Arizona Energy performed poor work, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
11. The preponderance of the evidence shows that Arizona Energy failed to comply with the Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
12. The preponderance of the evidence shows that Arizona Energy violated Ariz. Rev. Stat. section 32-1154(A)(9) by aiding and abetting an unlicensed contractor.
ORDER
Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license number 272004 be revoked. 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 forty days from the date of that certification.
Done this day, September 13, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors