FINACT2018A-04627-ROC.pdf

2018A-04627-ROC · Registrar of Contractors · 2019-04-12

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Mike Palmer, Case No. 2018-04627 COMPLAINANT, Docket No. 2018A-04627-CHC-ROC v. Metro Valley Construction LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 299413, 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.

REGISTRAR’S ACCEPTANCE

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 hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on May 22, 2019.

Dated April 12, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail April 12, 2019 to: Respondent Metro Valley Construction LLC PO Box 1090 Higley, AZ 85236 Complainant Mike Palmer 5345 E McClellan Rd #41 Mesa, AZ 85205 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Case No. 2018-04627 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.3.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mike Palmer, No. 2018A-04627-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Metro Valley Construction LLC, DECISION License No. ROC 299413, RESPONDENT

HEARING: March 25, 2019 APPEARANCES: Mike Palmer on his own behalf; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On January 31, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 1:00 p.m. on March 25, 2019 at the Office of Administrative Hearing. 2. No representative for Respondent Metro Valley Construction, LLC appeared at the scheduled hearing time and the matter was convened in its absence at about 1:15 p.m. 3. Metro Valley Construction holds license No. 299413 issued by ROC. Ryan James Davis is Metro Valley Construction’s qualifying party and a member of the LLC. 4. On or about September 15, 2017, Complainant Mike Palmer hired Metro Valley Construction to do certain work at his house. 5. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint. The Notice of Hearing does not provide the date the CITATION was issued or when the complaint was issued or filed. There appears to be no dispute that ROC issued the CITATION on January 9, 2019, or that Complainant filed with ROC a complaint against Respondent on October 1, 2018. 6. Through the CITATION, ROC alleges that Metro Valley Construction may have violated ARIZ. REV. STAT. sections 32-1154(A)(2), (A)(3) and (A)(22). The CITATION shows that ROC could not determine whether Metro Valley Construction has actually committed any of the alleged violations, which is why the matter was set for hearing.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.3.2019 ROC LEGAL

The CITATION also shows that the CITATION itself is not evidence that Metro Valley Construction has violated any statute or rule. 7. The CITATION shows that if the Administrative Law Judge finds that any of

the alleged charges are valid, ROC may suspend or revoke Metro Valley Construction’s

license.

8. On October 1, 2018, ROC received from Mr. Palmer a complaint against

Metro Valley Construction. Mr. Palmer’s complaint shows that he has paid to Metro

Valley Construction $76,613 for work under the parties’ contract.

9. ROC assigned Investigator Dennis Bierma to Mr. Palmer’s complaint.

10. Mr. Bierma conducted a jobsite inspection at which time he determined

that Metro Valley Construction had failed to obtain the permits required for its work.

11. Mr. Bierma also determined that Metro Valley Construction’s work failed to

meet the minimum standards in four respects: heaters were not operational; the pool

pump heater was not operational; the bar counter was not level; and the pool’s water

feature cap was cracking.

12. On November 23, 2018, ROC issued to Metro Valley Construction a

DIRECTIVE that required Metro Valley Construction to correct by appropriate means the four workmanship violations and to obtain all required permits. ROC’s DIRECTIVE required Metro Valley Construction to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. December 21, 2018. 13. ROC’s DIRECTIVE shows that ROC had determined that any other workmanship violations alleged in Mr. Palmer’s complaint were unsubstantiated. 14. As of the hearing date, the workmanship violations had not been corrected and Metro Valley Construction had not obtained the required permit. 15. On February 13, 2018, City of Mesa issued a Stop Work order at the job based on Metro Valley Construction’s failure to obtain the required permits. 16. As a result of Metro Valley Construction’s failure to obtain the required permit, City of Mesa informed Mr. Palmer that it was going to levy against him a civil penalty, but had delayed doing so after learning that Mr. Palmer had involved ROC in the matter. RECEIVED 4.3.2019 ROC LEGAL

17. Mr. Palmer testified that there had been no contact from Metro Valley Construction’s Mr. Davis since September 2018, which was before Mr. Bierma’s inspection. (No representative from Metro Valley Construction was at that inspection.)

CONCLUSIONS OF LAW

1. 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. ARIZ. ADMIN. CODE § R2-19-119.

2. “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.” ARIZ. REV. STAT. § 41-1092.07(G)(2).

3. “At a hearing on an agency's imposition of fees or penalties or any agency

compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-

1092.07(G)(3). 4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 7. 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). RECEIVED 4.3.2019 ROC LEGAL

8. The evidence of record shows that Metro Valley Construction is unscrupulous, unqualified or both. 9. The Administrative Law Judge may consider ROC’s administrative record.

See ARIZ. ADMIN. CODE § R4-9-118.

10. 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: ***** 2. Departure from or disregard of plans or specifications or any building codes of this state or any political subdivision of this state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. ***** 3. Violation of any rule adopted by the registrar. ***** 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…. 11. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 12. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 13. The preponderance of the evidence shows that Metro Valley Construction violated ARIZ. REV. STAT. section 32-1154(A)(2) by failing to obtain the required permits. 14. The preponderance of the evidence shows that Metro Valley Construction violated ARIZ. REV. STAT. section 32-1154(A)(3) by failing to perform its work in a professional manner. RECEIVED 4.3.2019 ROC LEGAL

15. The preponderance of the evidence shows that Metro Valley Construction violated ARIZ. REV. STAT. section 32-1154(A)(22) by failing to comply with the DIRECTIVE because Metro Valley Construction did not properly complete work ROC ordered it to

complete in the time set out in ROC’s DIRECTIVE.

16. Because Metro Valley Construction has violated ARIZ. REV. STAT. sections

32-1154(A)(2), (A)(3), and (A)(22), ROC has authority to discipline its license, including

imposition of a civil penalty.

17. Metro Valley Construction’s failure to appear at the hearing is a factor in

aggravation.

18. Considering the facts and circumstances of this matter, particularly Metro

Valley Construction’s failure to appear at the hearing, the length of time since the

parties entered their contract, and that Metro Valley Construction had not contacted Mr.

Palmer since September 2018, its license should be revoked for the violations of ARIZ.

REV. STAT. sections 32-1154(A)(2), (A)(3) and (A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter Metro Valley Construction LLC’s license number 299413 be revoked. 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 is forty days after the date of that certification.

Done this day, April 2, 2019. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors