FINACT2017A-4067-CHC-ROC.pdf
2017A-4067-CHC-ROC · Registrar of Contractors · 2018-02-20
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Robert Kivett Jr, Case No. 2017-4067 COMPLAINANT,
v.
J Burroughs Construction LLC, License No. 270040, 270041, Docket No. 2017-4067-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 The Registrar of Contractors issued license no. B1.270040-C on or about January 20, 2011, for general commercial contracting. ALJ Dec. 1:25-26. The Registrar of Contractors issued license no. R9.270041-R on or about February 4, 2011, for residential concrete contracting. ALJ Dec. 1:27-28. On or about January 2017, Respondent began work under the contract. ALJ Dec. 1:21-22. The evidence shows that license no. B1.270040-C was active from August 11, 2011 through August 8, 2017. ALJ Dec. 5:20-22. The evidence shows that license no. R9-270041-R1 was active from February 4, 2011 through March 3, 2017. ALJ Dec. 4:25-29 through 5:1. There was no evidence provided at the hearing that Respondent contracted under a license that was suspended at the time that it performed work in violation
1 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 of A.R.S. § 32-1154(A)(17). ALJ Dec. 5:18-20.
Respondent does not hold a general residential license. ALJ Dec. 1:30. The preponderance of the
evidence showed that Respondent violated A.R.S. § 32-1154(A)(16). ALJ Dec. 5: 15-16.
The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(12). ALJ
Dec. 5:11-12.
The preponderance of the evidence shows that Respondent did not perform the work in a
professional and workmanlike manner in violation of A.A.C. R4-9-108 and in violation of A.R.S. § 32-
1154(A)(3). ALJ Dec. 5:23-25. However, the preponderance of the evidence did not show that
Respondent violated A.R.S. § 32-1154(A)(22) because Complainant did not provide opportunity for
Respondent to resolve the matter as required by the Directive. ALJ Dec. 5:26-27 through 6:1-3.
ADMINISTRATIVE LAW JUDGE WRITTEN DECISION
The Administrative Law Judge concluded that Respondent did not violate A.R.S. § 32-1154(A)(17)
or (22). ALJ Dec. 5:17-22 and ALJ Dec. 5:26-27 through 6:1-3. The Administrative Law Judge
concluded that Respondent did violate A.R.S. § 32-1154(A)(3), (12), and (16). ALJ Dec. 5:15-16 and
5:23-25. The Administrative Law Judge recommended that Respondent fully comply with the terms of
the Directive within 30 days of the effective date of the Registrar’s Order. ALJ Dec. 6:15-17. The
Administrative Law Judge further recommended closure of the case if Respondent complied, or
alternatively, suspension of Respondent’s license nos. 270040 and 270041 for three days if Respondent
did not comply with the Directive within the specified time frame. ALJ Dec. 6:18-27. Finally, the
Administrative Law Judge provided for closure of the case if Respondent provides the Registrar with
acceptable written evidence that Complainant has refused to communicate with Respondent regarding a
financial settlement or payment for the corrective work. ALJ Dec. 6:28-29 through 7:1-4.
REGISTRAR’S MODIFICATION AND JUSTIFICATION
The Registrar accepts the Administrative Law Judge’s conclusions as to Respondent’s violations of
A.R.S. § 32-1154(A)(12) and (16). The Registrar accepts the Administrative Law Judge’s conclusions as to Complainant’s failure to prove that Respondent violated A.R.S. § 32-1154(A)(17) and (22).
The Registrar modifies the conclusion that Respondent violated A.R.S. § 32-1154(A)(3).
Respondent did not violate A.R.S. § 32-1154(A)(3) because Respondent was not afforded a reasonable
opportunity to remedy the violations identified in the Directive. ALJ Dec. 5:26-27 through 6:1-3, and 4:3-
15. Respondents 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
3 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 CONCLUSION
The Registrar, therefore:
• modifies the Administrative Law Judge’s Written Decision finding that Respondent violated
A.R.S. § 32-1154(A)(3). Respondent did not violate A.R.S. § 32-1154(A)(3) because
Respondent was denied an opportunity to cure the violations listed in the Registrar’s Directive;
• does not modify the Administrative Law Judge’s Written Decision finding that Respondent
violated A.R.S. § 32-1154(A)(12) and (16). The Registrar determines that the valid justification
for failing to cure the violation of A.R.S. § 32-1154(A)(3) does not extend to violations of the
administrative charges of A.R.S. § 32-1154(A)(12) and (16), which are not curable; and,
• modifies the Recommended Order in the Administrative Law Judge’s Written Decision and
orders that Respondent’s license no. R9-270041-R1 be suspended for a period of three days for
violating A.R.S. § 32-1154(A)(12) and (16).
This Order becomes effective on March 18, 2018.
Dated this 6th day of February 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 6th day of February 2018 to: Respondent J Burroughs Construction LLC PO Box 10521 Fort Mohave, AZ 86427-0521
Complainant Robert Kivett Jr. 2610 S. Progress Rd. Spokane Valley, WA 99037-5016 Robert Kivett Jr. 7794 N. Seely Dr. Lake Havasu City, AZ 86404-1791
Complainant’s Attorney Nicholas R. Darus Esq. Knochel Law Offices 1967 Highway 95 Bullhead City, AZ 86442-6743
Case No. 2017-4067/jo
5 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762