FINACT2017A-4790-CHC-ROC.pdf

2017A-4790-CHC-ROC · Registrar of Contractors · 2018-03-20

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Ryan Patterson, Case No. 2017-4790

COMPLAINANT,

v.

True Performance Construction Inc., License Nos. 289830, 289831 Docket No. 2017A-4790-CHC-ROC FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT. 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 True Performance Construction, Inc. (Respondent) is the holder of License Nos. B289830 and B1.289831. ALJ Dec. 1:24-25. 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. 3:3-6. The administrative law judge found that the Respondent violated Rule 4-9-108, and thereby A.R.S. § 32-1154(A)(3). ALJ Dec. 6:20-25. However, the administrative law judge found that the preponderance of the evidence did not show that Respondent violated A.R.S. § 32-1154(A) (22) “because Complainant did not allow Respondent reasonable access to do the required work before the deadline imposed in the CWO.” ALJ Dec. 6:26 – 7:2. The administrative law judge recommended that Respondent’s licenses be suspended for one day unless the Registrar receives proof that Respondent has remedied the repair items in the Directive,

1 of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 provided that Complainant permit access at reasonable times and dates to make the required repairs. ALJ

Dec. 7:8-15.

REGISTRAR’S MODIFICATION AND JUSTIFICATION

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. 6:9-28 through 7:1-2.

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

CONCLUSION

The Registrar, therefore, modifies the administrative law judge decision by:

• Replacing ¶ 8 on page 6 with, “The preponderance of the evidence does not show that

Respondent violated Rule 4-9-108, and thereby of A.R.S. § 32-1154(A)(3) because Respondent

was denied an opportunity to cure the violations listed in the Registrar’s Directive”; and

• Replacing lines 8-16 on page 7 with, “IT IS RECOMMENDED that this matter be dismissed. FINAL NOTE The Registrar replaces, “Kline” with “Klein” on page 2, line 15, page 3, ¶ 8 and 9 of the Decision. The Registrar further replaces, “Respondent” with “Complainant” on page 5, line 11 of the Decision. The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on April 15, 2018. Dated this 6th 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 this 6th day of March 2018 to: Respondent True Performance Construction Inc 21424 N 7th Ave Ste 2 Phoenix, AZ 85027-2914

Kirsten L. Copeland, Esq. Copeland Law Offices, PLLC 9017 N 57th Dr Glendale, AZ 85302-3146 Complainant Ryan and Nicole Patterson 1002 W Butler Dr Phoenix, AZ 85021-4459 Copy sent electronically this same date to:

3 of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s counsel at email address on record with the Registrar Complainant’s email address on record with the Registrar

Case No. 2017-4790/an