FINACT2017A-989-CHC-ROC.pdf

2017A-989-CHC-ROC · Registrar of Contractors · 2017-10-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Ivy Lynn Mitchell, Case No. 2017-989

COMPLAINANT,

v.

Universal Homes Construction, LLC, Docket No. 2017A-989-CHC-ROC License No. 159590, 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.

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached.

MODIFICATION AND WRITTEN JUSTIFICATION

The Registrar’s citation of a contractor raises the central issue of whether a contractor’s license

should be suspended or revoked. See A.R.S. § 32-1155(A). If the holder of a contractor’s license commits

any of the acts or omissions listed under A.R.S. § 32-1154(A), then the Registrar is authorized to suspend

or revoke the license. See A.R.S. § 32-1154(B). On August 31, 2017, the administrative law judge issued his recommended decision dismissing the Citation and Complaint based upon the Conclusion of Law that Complainant would refuse access to Respondent if the judge recommended providing Respondent with an additional opportunity to correct the poor work. See ALJ Dec. 5:12-18. The Decision concluded that “it is not appropriate to issue an order requiring [Respondent] to make the appropriate corrections, nor is it appropriate to suspend or revoke

1 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 [Respondent’s] license.” ALJ Dec. 5:16-18. The administrative law judge made this conclusion despite finding that Respondent violated ARS § 32-1154(A)(3), namely A.A.C. R4-9-108. The Decision’s Conclusions of Law are contrary to the Findings of Fact and the applicable laws and thus must be modified. Finding of Fact No. 7 notes that the Registrar issued a written directive to Respondent on March 31, 2017 and that “Respondent was directed to correct the condition in an appropriate manner on or before April 15, 2017. See ALJ Dec. 2:21-26. Finding of Fact No. 8 states that upon Complainant’s request, the deadline to comply with the written directive was extended by 10 days. See ALJ Dec. 3:1-4. Finding of

Fact No. 12 also states that Complainant permitted Respondent to perform repair work over a three-day

period in May, 2017. See ALJ Dec. 3:17-18. Finally, Finding of Fact No. 13 notes that when the Registrar

conducted its compliance inspection on June 2, 2017, Investigator Dimond found that “compliance [had]

not been achieved inasmuch as four tiles still needed repair.” See ALJ Dec. 3:19-21. In short, Respondent

had a reasonable period of time, and access to attempt to comply with the Registrar’s written directive,

but failed to fully complete the corrective work.

CONCLUSION AND ORDER

For the foregoing Reasons, the Registrar removes the administrative law judge’s Conclusion of

Law No. 9 found on page 5 of the Decision, and adds the following Conclusions of Law: 9. While the Registrar encourages parties to continue efforts to resolve a complaint’s underlying issues, there is no ongoing duty to grant access to the jobsite after the written directive’s deadline expires. Under A.R.S. § 32-1154(A)(22), it is a violation to fail to take appropriate corrective action without a valid justification “within a reasonable period of time after receiving a written directive from the Registrar.” This period of time to take corrective action must not be less than fifteen days from the date of the directive. See A.R.S. § 32-1154(A)(22). 10. Here, the Registrar first issued its directive on March 31, 2017 with a deadline to complete the corrective work by April 15, 2017. At the request of the Complainant, the Registrar extended the directive’s deadline until April 25, 2017. Even after the directive’s deadline expired, Complainant permitted Respondent to perform repair work over a three-day period in May 2017. However, by the time the Registrar conducted its compliance inspection on June 2, 2017, Investigator Dimond determined that Respondent had failed to fully comply with the March 31, 2017 written directive. 11. The preponderance of the evidence established that Respondent failed to timely remedy all of the items listed on the Directive as issued by the Registrar. This failure resulted in poor workmanship and thus, Respondent violated the charged provisions of A.R.S §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

For the foregoing reasons, the Registrar modifies the recommended order to read as follows:

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license No. 159590 for a period of one (1) day. The Registrar also makes the following administrative corrections: • “August 8, 2017” found on page 1, ¶ 1 of the Decision is replaced with “August 3, 2017”; • “November 11, 2016” found on page 2, ¶ 4 of the Decision is replaced with “November 10, 2016”; and • “June 25, 2017” found of page 3, ¶ 10 of the Decision is replaced with “April 25, 2017.” The Registrar accepts the remainder of the Administrative Law Judge Decision, which becomes effective on November 7, 2017

Dated this 28th day of September 2017.

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 28th day of September 2017 to:

Respondent Universal Homes Construction LLC 23335 N 18th Dr Ste 122 Phoenix, AZ 85027-6301 Complainant Ivy Lynn Mitchell 6210 E Dutton Dr Prescott Valley, AZ 86314-2359

And copy electronically mailed this same date to:

Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Case No. 2017-989/an

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