ALJDEC decisions subject to certification as final
2017A-4790-CHC-ROC · Registrar of Contractors · 2018-02-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ryan Patterson,
COMPLAINANT,
v.
True Performance Construction Inc ,
License No: 289830, 289831
RESPONDENT.
No. 2017A-4790-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 2, 2018
APPEARANCES: Ryan Patterson, Esq. Complainant and attorney for the Complainant, Nicole Patterson, Esq., Complainant’s spouse, Kirsten Copeland, Esq., Attorney for the Respondent, Steve Watson Respondent and Qualifying Party, Ashley Dishon, Respondent witness, Chris Healy, Respondent witness; Steve Klein, Inspector, Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
FINDINGS OF FACT
Respondent, True Performance Construction Inc. (Respondent) is the holder of License Nos. 289830, 289831 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 21, 2016, Ryan Patterson, Esq., (Complainant) entered into a contract with Respondent to, among other things, provide construction services for a re-model of the Complainant’s residence according to the plans, drawings and structural calculation of Complainant’s architect (the Contract]. Among the many items contained in the Contract, the Respondent was engaged to provide:
Millwork / Cabinetry... for the Kitchen and Master Bathroom Cabinetry:
Painted Cabinets with "Shaker Style" Doors.
All doors will be installed with 1 1⁄4" European style overlay concealed hinges (lifetime rated hardware).
Drawer boxes will be birch with dovetail construction.
Drawer guides will be self-closing soft close full extension under mount (lifetime rated hardware).
Includes 31⁄4" crown molding package, style to be determined.
Cabinet hardware (knobs & pulls) is included as an allowance which includes installation of the hardware.
Includes an allowance for engineered millwork in the Laundry Room.
Floor Coverings...An allowance is included for a tile floor in the Master Bathroom, Mud Room, Pantry and the new Laundry Room Floor.
Prefinished Hardwood Floors are included as an allowance for the Kitchen, Living Room, Family Room, Dining Room, Hallway and Master Bedroom.
On September 18, 2017, Ryan Patterson filed a written complaint with the Arizona Registrar of Contractors against Respondent alleging Respondent’s poor work performance regarding flooring installed at the complainant’s residence and alleging that the Respondent used unlicensed sub-contractors to install cabinetry in the home.
The Registrar assigned the complaint to Investigator Steve Klein. On or about October 11, 2017, after a jobsite inspection, Investigator Kline issued a written directive [CWO] to Respondent that provided as follows:
Complaint Item 1: True Performance, used multiple unlicensed subcontractors for our project... Inspector addressing issues by sending appropriate letters.
Complaint Item 2: The contract indicates that the cabinets would be taken care of by a subcontractor. True Performance now claims that Servant was not a subcontractor, but merely a supplier and that True Performance installed all of the cabinets itself. That was not the case. We personally watched Servant install all of the cabinets at our house...Inspector addressing issues by sending appropriate letters.
Addendum to the complaint added during the jobsite inspection and Respondent agreed to address and correct
Complaint Item 3: Gaps in the hardwood floors.
Verified gaps in several areas.
Complaint Item 3: Rise over run issues that are not to specification
Verified lippage issue at hall wall corner.
Complaint Item 4: (High and low points).
The concrete subfloor to be flat within 3/16′′ over a 10 foot radius.
Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
Following the issuance of the CWO, Respondent did not correct the items listed in the directive.
The Registrar issued a citation against Respondent, charging possible violations of A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and a possible violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action).
A hearing was held on February 2, 2018 regarding the charges contained in the citation.
Investigator Kline testified that the CWO required the Respondent to remedy the items listed in the CWO on or before 5:00 pm on October 27, 2017. On or about October 31, 2017 Inspector Kline received notice from the Complainant that the Respondent had not remedied the items listed in the CWO. Thus, because of the notice of Respondent’s non-compliance with the CWO given by the Complainant, Inspector Kline did not conduct a compliance inspection. On November 2, 2017, the citation, which is the subject of this proceeding, was issued.
The Complainant Ryan Patterson testified consistent with Inspector Kline that poor workmanship by the Respondent resulted in gaps in the installed hardwood floors in several areas, that the rise overrun issues are not to specification, that there are lippage issues at the hall wall corner and that the concrete subfloor was not flat.
Mrs. Nicole Patterson, Ryan Patterson’s spouse, and Complainant Ryan Patterson both testified regarding difficulties in scheduling the Respondent for a return visit to remedy the items in the CWO.
Complainant testified that in the period around the time after the issuance of the CWO and the ordered compliance date of October 27, 2017, the times and dates available for the Respondent to perform work to comply with the CWO was very limited because both Mr. Patterson and Mrs. Patterson are full-time practicing attorneys who are required to be away from their home, out of state or out of the country and have very complex calendars, that the Pattersons are parents to two small children who also have time demands that take the parents away from the home, and that the Complainants were concerned about strangers in their home with their children present even if the children were being watched and supervised.
Complainant Ryan Patterson pointed out that in the contract with the Respondent, the Complainant had an absolute right to approve or disapprove of any sub-contractor that the Respondent was intending to use on the project.
Mr. Patterson also testified that since he had an absolute right to approve the use of any subcontractor, he was never in a position to commit to a time for the Respondent to come to the residence for repairs since Mr. Patterson was not first informed of the identity of any subcontractor that may be used to perform the repairs.
With only two days before the cut-off deadline of the CWO, the Complainant informed Respondent that October 27, 2017 was the only date that would be made available for the Respondent to do its repairs under the CWO. Previous to this, when the Respondent contacted the Complainant to set a date for repair, the Complainant did not respond with a date. Instead, the Complainant responded with questions demanding the Respondent identify any subcontractor that was intended to be used before a date for the CWO compliance would be offered by the Complainant.
Given that the Respondent was provided 72 hours or less by the Complainant to enter their home for repairs before the October 27, 2017 CWO deadline, the Respondent was unable schedule workers quickly enough on short notice to gain access to the Complainant’s home before the CWO deadline of October 27, 2017.
Although the testimony of Respondent’s employee, Ashley Dishon, demonstrated by a preponderance of the evidence that the Respondent made reasonable efforts to supply workers to do the repairs on the short notice given by the Complainant, Respondent was not able to secure workers for the job. Ms. Dishon testified further that she had secured workers that could be available in the following week. Ms. Dishon requested an extension of the October 27, 2017 CWO deadline to get the CWO work completed in the next week after the deadline but the extension request was refused by the Respondents.
The parties could not come to any agreement for access and Complainants would not allow the Respondent access to the property to complete the work ROC’s CWO ordered it to complete.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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). There is no evidence that the Respondent is “...unscrupulous, unqualified, and financially irresponsible.”
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
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.
The preponderance of the evidence shows that the Respondent violated A.A.C. R4-9-108 and therefore violated Ariz. Rev. Stat. § 32-1154(A)(3) by failing to perform its work in a professional manner in that work provided for floor covering at the Complainant’s residence showed verified gaps in the hardwood floors in several areas; rise overrun issues that are not to specification; verified lippage issues at the hall wall corner and the concrete subfloor was not flat (high and low points).
The preponderance of the evidence does not show that Respondent “[failed] to take appropriate corrective action to comply with [the CWO] without valid justification within a reasonable period of time after receiving a written directive from the registrar” because the Complainant did not allow the Respondent reasonable access to do the required work before the deadline imposed in the CWO.
Considering the nature of the violation and that the Complainant did not allow the Respondent access to comply with ROC’s CWO, the Respondent should be afforded an opportunity to remedy the items listed in the CWO by appropriate means.
RECOMMENDED ORDER
IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter, True Performance Construction Inc.’s License Numbers 289830 and 289831
is suspended for one (1) day unless the Registrar of Contractors receives proof sufficient to the Registrar of Contractors that True Performance Construction Inc. has appropriately remedied the repair items listed in the October 11, 2017 ROC directive. Provided that, Complainant Ryan Patterson must, with reasonable advanced notice, permit and allow True Performance Construction Inc. access at reasonable times and dates to make the required repairs.
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 40 days from the date of that certification.
Done this day February 19, 2018
/s/Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Ryan Patterson
1002 W Butler Dr
Phoenix, AZ 85021-4459
Complainant
Kirsten L. Copeland Esq.
Copeland Law Offices, PLLC
9017 N 57th Dr
Glendale, AZ 85302-3146
Attorney for the Respondenrt
True Performance Construction Inc
21424 N 7th Ave Ste 2
Phoenix, AZ 85027-2914
Respondent
Jeffrey Fleetham, Director
Registrar of Contractors
By: _______________