ALJDEC decisions subject to certification as final
2017A-4930-CHC-ROC · Registrar of Contractors · 2018-02-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brandon Michael Copeland,
COMPLAINANT,
v.
Bratton Construction LLC,
License No: 298187
RESPONDENT.
No. 2017A-4930-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 24, 2018
APPEARANCES: Complainant Brandon Michael Copeland appeared on behalf of himself. Ray Bratton appeared on behalf of Respondent Bratton Construction LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
1. In or around May or June of 2017, Complainant Brandon Michael Copeland, ( “Mr. Copeland”), and Respondent Bratton Construction, LLC, (“Bratton”), entered into a residential remodeling contract. Under the contract, Bratton would agreed to install cabinets and windows.
2. Bratton provided an estimate to Mr. Copeland regarding the project which includes the following language:
the deposit schedule is: $35,000 down payment to start the job, after the cabinets are delivered $22,000, $27,800 after flooring is done granier is installed but prior to any minor touch up’s and blue tape, final payment after 100% complete
3. Ray Bratton is the qualifying party of Bratton.
4. On June 9, 2017, Mr. Copeland paid Bratton a deposit in the amount of $12,000 deposit.
5. On or about June 14, 2017, Bratton began work under the contract.
6. On June 28, 2017, Mr. Copeland paid Bratton another $25,000 toward the deposit.
7. On September 29, 2017, Mr. Copeland’s wife sent a text message to Ray Bratton that provides:
Ray- I have contacted the police and if our door is not returned by tonight, I will be filing a police report first thing in the morning.
Effective immediately- we no longer want to work with you and you don’t have permission to enter our property. Please put the front door by our current front door and leave the premises.
8. On or about September 27, 2017, the Registrar received a complaint from Mr. Copeland alleging poor workmanship on the part of Bratton. Mr. Copeland also alleged in his complaint that Bratton refused to install the last windows and siding until Mr. Copeland paid him more money.
9. On October 17, 2017, Steve Klein, an investigator for the Registrar, conducted a job-site investigation. Investigator Klein observed that Bratton did not complete the work required under the contract and that Bratton removed all windows and left the property unsecured.
10. On October 17, 2017, Investigator Klein issued a Directive. The October 17, 2017 Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
11. The Directive stated that Bratton was required to comply with the directive by 5:00 p.m. on November 3, 2017.
12. Bratton did not comply with the Directive by November 3, 2017.
13. Bratton refused to do any further work under the contract until Mr. Copeland paid another progress payment. See Complainant’s Exhibit A. Bratton did not deliver the cabinets to Mr. Copeland during the time period for compliance under the Directive.
14. On November 6, 2017 Investigator Klein issued a Directive Compliance notice which provides:
Compliance Findings:
Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
15. On November 8, 2017, the Registrar issued a Citation alleging that Bratton may have violated Rule 4-9-108 and thereby A.R.S. §§ 32-1154(A)(1), (A)(3), and (A)(22).
16. Bratton filed a timely answer to the Citation alleging that Bratton was not required to do any further work until Mr. Copeland made an installment payment of $25,000.
17. The matter was referred to the Office of Administrative Hearings.
18. On November 30, 2017, the Registrar issued a Notice of Hearing regarding the charges made in the Citation and Complaint.
19. An administrative hearing was held on January 24, 2018.
18. At hearing, Investigator Klein provided testimony regarding the job site inspection and the Directive.
20. Mr. Copeland testified that Bratton did not comply with the Directive. Mr. Copeland testified that Bratton did not deliver the cabinets ordered or any other work under the contract. Mr. Copeland testified that Bratton never provided him with evidence that he ordered the cabinets.
21. Mr. Bratton testified that under the contract, Mr. Copeland was required to pay him an installment payment of $25,000 once the cabinets were delivered. Mr. Bratton testified that Mr. Copeland’s wife sent him a text message firing him on September 29, 2017. Mr. Bratton testified that he was present for the job-site investigation on October 17, 2017 although the inspection was rescheduled and he was provided with late notice of the rescheduled date and time.
22. In its answer, Bratton also contended that the City of Phoenix red tagged Mr. Copeland’s property for lack of permits on November 16, 2017.
23. Mrs. Copeland testified that the City of Phoenix did not red tag the property until November 13, 2017. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 13, 2018, there is one open complaint against Bratton’s license. Bratton has no disciplinary history.
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. A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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).
A.R.S. 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:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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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. (Underscore added.)
9. The preponderance of the evidence shows that Bratton abandoned the contract in violation of A.R.S. § 32-1154(A)(1).
10. The preponderance of the evidence shows that Bratton failed to comply with the Directive in violation of A.R.S. § 32-1154(A)(22). The weight of the evidence presented at hearing shows that Bratton left all of the windows and doors unsecured and refused to install the last windows and sliders. Furthermore, Bratton did not deliver the cabinets to Mr. Copeland during the time period for compliance under the Directive. Bratton did not even contend that he attempted to complete any other work under the contract during the timeframe for compliance under the Directive. There was no evidence presented that Mr. Copeland or his wife informed Bratton that it could not return to the property after the Directive was issued.
11. The preponderance of the evidence does not show that Bratton’s work failed to meet minimum workmanship standards as Bratton did not complete the work under the contract. Furthermore, Investigator Klein did not make any findings of poor workmanship.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order License No. 298187 of Respondent Bratton Construction, LLC shall be suspended for a period of one calendar day.
It is further recommended that the Registrar require Bratton to pay the sum of $250.00 as a civil penalty.
It is further recommended that if Bratton Construction, LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Bratton’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Bratton Construction, LLC, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
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 13, 2018
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors