ALJDEC decisions subject to certification as final
2017A-1687-CHC-ROC · Registrar of Contractors · 2017-08-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kathy Fink,
COMPLAINANT,
v.
Taylor Morrison/ Arizona, Inc.,
License No: 179178, 295015
RESPONDENT.
No. 2017A-1687-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 2, 2017
APPEARANCES: Complainant Kathy Fink appeared on behalf of herself. James Ganion, Esq. appeared on behalf of Respondent Taylor Morrison/Arizona, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
On June 7, 2017, the Registrar of Contractors (“Registrar”) issued a notice setting the above-captioned matter for hearing on August 2, 2017, at the Office of Administrative Hearings.
On May 18, 2017, the Registrar issued a Citation against Respondent Taylor Morrison Service/Arizona, Inc. (“Taylor Morrison”), alleging that Taylor Morrison violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108) and (A)(22).
The Notice of Hearing provides that the issues for hearing are the charges made in the Citation and Complaint.
On or about July 2, 2015, Complainant Kathy Fink entered into a contract with Taylor Morrison for the construction of a new home. Taylor Morrison also agreed to perform a pest-tube installation.
On or about March 1, 2016, Taylor Morrison completed the construction of the home without installing pest-tubes.
On or about April 5, 2017 the Registrar received a Complainant from Ms. Fink alleging that Taylor Morrison failed to install pest-tubes pursuant under a new home construction contract.
On April 19, 2017, Registrar Investigator Stephen Lawton conducted a job site inspection.
On April 19, 2017, Investigator Lawton issued a written Directive against Taylor Morrison’s License No. 179178. The April 19, 2017 Directive provides, in relevant, part as follows:
You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 8, 2017.
You are hereby directed to remedy the following violations by the appropriate means:
1. Pest-tubes not installed during construction.
Taylor Morrison did not install pest-tubes by May 8, 2017.
10. Taylor Morrison filed a timely response to the Registrar’s May 18, 2017 Citation alleging that Ms. Fink denied access to her home.
11. A hearing was held on August 2, 2017.
12. At hearing, Taylor Morrison presented the testimony of Patrick Magee. Mr. Magee testified that he is the Customer Service Manager for Taylor Morrison. Mr. Magee testified that Taylor Morrison offered to install the pest-tubes from the interior or the exterior during the timeframe for compliance under the Directive. Mr. Magee also testified that Taylor Morrison offered to provide 2 years of comlimentnary monthly pest control treatments of $1,500 to resolve the issue. Mr. Magee testified that Ms. Fink denied all of Taylor Morrison’s offers.
13. Mr. Fink testified that on May 3, 2017, during the timeframe for compliance under the Directive, he infromed Nate Fogelson, a Taylor Morrison employee, that Taylor Morrison could not cut into his drywall to install the pest-tubes. Mr. Fink testified that he did not want Taylor Morrison to cut into the drywall in the garage because the it was a finished job.
14. Ms. Fink denied Taylor Morrison access to her home to install the pest-tubes during the timeframe for compliance under the Directive. Ms. Fink testified that she did not allow Taylor Morrison to perform corrective work under the Directive because Taylor Morrison failed to provide her with information about liabilty, insurance, warranties, how the test tubes would be installed and whether she would be liable for injured workers. Ms. Fink also stated that she wanted to know how her plumbing and and eletrical system would be affected by the pest-tube installation.
15. Ms. Fink testified that she wanted more information about liablity because Taylor Morrison broke her brand new mattress and counch. Ms. Fink did not see a Taylor Morrison employee break her couch or her bed. Ms. Fink tstified that she saw a Taylor Morrison employee pull her bed. Ms. Fink testified that her bed and couch were in good condition before Taylor Morrison’s workers began working on her home. Ms. Fink testtified that she was told that she would be reimbrused for her mattress. However, Ms. Fink offered no eyewitness testimony or written evidence that Taylor Morison broke her couch and bed.
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 section 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. § 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:
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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.
9. The preponderance of the evidence shows that Ms. Fink denied Taylor Morrison access to her home during the timeframe for compliance under the Directive. Ms. Fink refused to allow Taylor Morrison to perform corrective work unless Taylor Morrison provided her with more information about insurance, warranties, and liability. Ms. Fink provided no legal authority to support her position that Taylor Morrison should have provided her with more information regarding insurance, warranties and liability before performing installing pest-tubes.
10. The preponderance of the evidence shows that Taylor Morrison violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.
11. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Taylor Morrison violated the charged provisions of Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108) and (A)(22).
RECOMMENDED ORDER
In view of the foregoing, it is recommended that this matter be dismissed.
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 is forty days after the date of that certification.
Done this day, August 22, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors