FINACT2017A-3705-CHC-ROC.pdf

2017A-3705-CHC-ROC · Registrar of Contractors · 2018-03-23

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Michael Patrick Delgado, Case No. 2017-3705 COMPLAINANT,

v.

Solana Outdoor Living LLC, License No. 309290, 282154, Docket No. 2017A-3705-CHC-ROC RESPONDENT. FINAL ADMINISTRATIVE DECISION AND ORDER

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. MODIFICATION & JUSTIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and modifies it. BACKGROUND Solana Outdoor Living, LLC (Respondent) is the holder of License Nos. 309290 and 282154. ALJ Dec. 1:20-21. The Registrar issued a citation against Respondent, charging possible violations of Rule 4- 9-108, and thereby of A.R.S. § 32-1154(A)(3) and a possible violation of A.R.S. § 32-1154(A)(22). ALJ Dec. 2:10-16. The administrative law judge found that Complainant presented sufficient evidence to support a finding that the Respondent violated Rule 4-9-108, and thereby A.R.S. § 32-1154(A)(3). ALJ Dec. 6:1-6. However, the administrative law judge then found that Complainant failed to present sufficient evidence to support a finding that Respondent failed to take appropriate corrective action to comply with the Directive. ALJ Dec. 6:7-10. The administrative law judge concluded that

1 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Complainant failed to present sufficient evidence to establish cause to discipline Respondent’s contractor

licenses under A.R.S. § 32-1154(A)(22). ALJ Dec. 7:3-5.

REGISTRAR’S MODIFICATION AND JUSTIFICATION

The Registrar modifies the conclusion that Respondent violated A.R.S. § 32-1154(A)(3), because

the administrative law judge concluded that Respondent had a valid justification for failing to take

corrective action required by the Directive. ALJ Dec. 7:3-5. Contractors should be afforded a reasonable

opportunity to cure an infraction before discipline will be imposed:

“A breach cannot be said to be material if it is curable, notice to cure is given, and prompt steps are taken to cure or to offer assurances of cure. The right of a breaching party to be given an opportunity to cure its own material breach is an ancient equitable principle…. Cure is relevant to materiality by virtue of its focus on elimination of the breach and its implied assurance of intent to tender adequate future performance…. Providing a cure notice of curable breaches deemed by the nonbreaching party to be sufficiently material to warrant termination for cause is a fundamental prerequisite to termination…. Unless expressly waived, the right to cure is implied in every contract as a matter of law.” Source: Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 18:15 (West Group 2002).

See Registrar of Contractor’s Substantive Policy Statement 2017.01.

Where a contractor is denied access to comply with the written Directive, there is no violation of

A.R.S. § 32-1154(A)(3):

“Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.”

Source: BB Ewing Property Management v. Khart Management LLC No. 2015-1168(ALJ Dec. 15:19–25). See Registrar of Contractor’s Substantive Policy Statement 2017.01

CONCLUSION

The Registrar modifies the Administrative Law Judge Decision by:

• Replacing ¶ 6 on page 6 of the Decision with, “While the Complainant has presented sufficient

evidence to support a finding that Directive items numbers 1 – 3 still remain uncorrected by

Respondent, the Complainant has failed to present sufficient evidence to establish cause to

discipline Respondent’s contractor licenses under A.R.S. § 32-1154(A)(3) because Respondent

had valid justification for its failure to take corrective action.”

• Replacing lines 13-24 on page 7 of the Decision with, “IT IS RECOMMENDED that this matter

be dismissed.

The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on May 1, 2018. Dated this 22nd day of March 2018. Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund

Copy mailed via USPS First Class mail and via electronic mail this 22nd day of March 2018 to:

Respondent Solana Outdoor Living LLC 12090 N. Thornydale Rd., Ste. 104 Marana, AZ 85658-4779 Complainant Michael Patrick Delgado 565 E. Crescent Moon Dr. Oro Valley, AZ 85755-4770 Case No. 2017-3705/jo

3 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762