FINACT2018A-04723-ROC.pdf

2018A-04723-ROC · Registrar of Contractors · 2019-06-13

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Julian Willetts, Case No. 2018-04723 COMPLAINANT, Docket No. 2018A-04723-CHC-ROC v. FINAL ADMINISTRATIVE DECISION AND ORDER Sunset Design Build LLC, License No. ROC 315155, 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 July 22, 2019.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable

to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-

delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE

Throughout page four, “2019” should be “2018.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 On page five, paragraph eight, line 14, “Sunsetf’s” should be “Sunset’s.”

On page five, paragraph nine, line 22, “November 26, 2017” should be “January 10, 2019.”

On page seven, paragraph 16, line 29, “A.R.S. 32-1154.A.23” should be “A.R.S. § 32

1154(A)(22).”

Throughout page eight, “A.R.S. 32-1154(D)” should be “A.R.S. 32-1154(E).”

On page eight, paragraph 20, line 10, “A.R.S. 32-1154(A)(23)” should be “A.R.S. § 32

1154(A)(22).”

On page eight, paragraph 20, line 10, “October 20, 2017” should be “November 19, 2018.”

On page eight, in the Recommendation, “$500.00” should be “$250.00.”

Dated June 11, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail June 10, 2019 to: Respondent Sunset Design Build LLC 3544 N Romero Rd Ste 106 Tucson, AZ 85705 Complainant Julian Willetts 6765 N Catalina Ave Tucson, AZ 85718

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 Randolph D. Wolfson, Administrative Law Judge

Case No. 2018-04723 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.22.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Julian Willetts, No. 2018A-04723-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

Sunset Design Build LLC, ROC License: ROC 315155,

RESPONDENT

HEARING: April 30, 2019 APPEARANCES: Julian Willets, Complainant, Sarah Willetts, Complainant’s spouse, Greg Johndrow, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

1. The Registrar referred the matter to the Office of Administrative Hearings,

an independent state agency, for an evidentiary hearing regarding a COMPLAINT against

the Respondent for poor and below standard workmanship, failure to follow plans and

specifications and an apparent abandonment of the contracted project.1

2. On January 23, 2019, the Registrar issued a Notice of hearing setting a

hearing at March 12, 2019 at 8:30 AM. The Registrar mailed copies of the Notice of hearing to the Respondent, Sunset Design Build LLC, ROC License number 315155 [hereinafter “Sunset”] at Sunset’s is address of record. On January 14. 2019, Corey B. Larson, Esq., filed his firm’s Notice of Appearance on behalf of Sunset. On the same date filed Sunset’s Answer in this matter. Upon Motion of Sunset, hearing was Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.22.2019 ROC LEGAL

continued to 1:00 p.m., April 30, 2019. On April 29, 2019, one day before scheduled hearing, Corey B. Larson, Esq. filed “Respondent’s Notice of No Contest and Notice of Withdrawal of Counsel.” The Notice of No Contest stated:

Respondent Sunset Design Build, LLC, by and through counsel undersigned, hereby notifies the Administrative Law Judge that Respondent has tendered its resignation of its licenses, number 315155 and 092540, effective March 21, 2019, copies attached. As Sunset Design Build, LLC has tendered its resignation of its license, it will not present any witnesses nor contest the April 30, 2019, hearing. This tender of its licenses was made by email to the Arizona Registrar of Contractors on March 26, 2019, and thereby makes the matters at this hearing moot.2

3. The Notice of Hearing informed the parties that “[f]ailure to attend the

scheduled hearing is likely to result in an adverse ruling against you.”

4. Sunset did not request to appear telephonically and did not request that

the hearing be continued. Although the start of the hearing was delayed 20 minutes,

Sunset did not appear for hearing through an authorized member, employee or

attorney. Consequently, Sunset did not present any evidence. A hearing was

conducted on April 30, 2019 commencing at 1:20 P.M., before the Office of

Administrative Hearings.

5. ROC Investigator Greg Johndrow testified at hearing that upon receipt of

the Willett Complaint, he provided written notice to the parties of the setting of a Job

Site Inspection [“JSI”] at Willett’s residence. The JSI was conducted November 5, 2018 in follow-up to the Complaint. At the JSI, Complainant Julian Willetts and Sarah Berna [of Sunset] appeared and participated. Inspector Johndrow advised that the Notice of the inspection was provided to the Sunset at its address of record. At the November 5, 2019 JSI, in addition to the items listed in the Complaint, items not included in the original complaint were discussed. Rather than pursue an additional Complaint, the parties agreed to an addendum to the Complaint. Sarah Berna’s [of Sunset] request that their work could be completed in 30 to 45 days. The jobsite inspection was See, Sunset’s Respondent’s Notice of No Contest and Notice of Withdrawal of Counsel. Sunset’s assertion in its Notice of No Contest that “the matters at this hearing [are] moot” is incorrect. Willits is entitled to present evidence and argument on the Compliant and Citation to develop its foundation for an eventual filing by the Complainant of a claim with the Arizona Residential Contractors Fund. RECEIVED 5.22.2019 ROC LEGAL

performed on this date and time. Investigator Johndrow testified consistently with his Job Site Inspection Notes3 that: The jobsite inspection was performed on this date and time with both parties present. Present for the respondent was Sarah Berna. The Respondent added an addendum to the original contract on April 9, 2018 stating the renovation would be completed within 35 work day from the approval of the permits through local building department. The permit was issued on June 1, 2018. The renovation has not been completed as of this date and is still in progress. [emphasis added]…

Item 1: "Contract four months past the initial completion date. Total contract length was four months." Investigator’s Observation: Substantiated. The respondent has not met the terms of the agreement enter into dated April 9, 2018. Governing Rule: 32- 1154 A 2 Plans and specifications.

Complaint Item 2: "Materials starting to deteriorate due to sun exposure and work not being completed fast enough - polystyrene layer that goes underneath stucco." Investigator’s Observation: Unsubstantiated. The allegation has been cover by stucco and I am unable to view. Governing Rule: N/A: Complaint Item 3: "Sub Contractors asking us directly for money Complaint Item 4: "Amount of work completed significantly less than amount of money we have paid." Investigator’s Observation: Unsubstantiated. This is a general allegation and not something specific for me to inspect and report on. Project is still in progress. [emphasis added]. Governing Rule: N/A: Complaint Item 8: "Error when cutting opening for window in irreplaceable burnt adobe block resulting in compromised wall. concern that this will not be addressed appropriately." Investigator’s Observation: Unsubstantiated. I am unable to observe the condition as the interior side has been cover with drywall and the exterior has been cover by stucco. Governing Rule: N/A:

“Contract four months past the initial completion date. Total contract length was four months." Investigator’s Observation: Substantiated. The respondent has not met the terms of the agreement enter[ed] (sic) into dated April 9, 2018. Governing 3 Agency Record, “Job Site Inspection Notes,’ pages 74 and 75. RECEIVED 5.22.2019 ROC LEGAL

Rule: 32-1154 A 2 Plans and specifications.

The Inspector testified that on November 19, 2019, he issued his Written Directive and Corrective Work Order to Sunset directing: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on December 20, 2018. [emphasis in the original]. You are hereby directed to remedy the following violations by the appropriate means: "Contract four months past the initial completion date. Total contract length was four months." (Complete work contract and contract addendum).

6. On December 21, 2019, a Compliance Inspection was conducted. Mr. Johndrow testified that the Directive had not been complied with and that the project at that time was far from completion. He testified consistently with his Compliance Inspection Notes4 that: The Respondent stated at the initial jobsite inspection that the work could be completed in 30 to45 days, the time lapse from the initial jobsite inspection to the compliance jobsite inspection was46 days. The project is not completed in multiple areas of the interior and exterior of the residence. …Compliance Findings: The directive has not been met. Complaint Item 1: "Contract four months past the initial completion date. Total contract length was four months." (Complete work contract and contract addendum) This Item: not complied with, the project has not been completed.

7. On December 28, 2019, the Registrar issued its citation against the Sunset charging three alleged violations: A violation of A.R.S. § 32-1154(A)(2);5 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 violation of A.R.S. §

Agency Record, Page 50. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the 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. RECEIVED 5.22.2019 ROC LEGAL

32-1154(A)(22)6 8. A Pre-Hearing Inspection was conducted by Investigator Johndrow on March 11, 2019:7

“…both parties [were] present. Present for the respondent was Sarah Berna. The project status remains not completed. The respondent has continued to work on the project from the compliance inspection to this date and is lacking completion on the interior and the exterior. The complainant addressed workmanship issues related to the concrete overlay floor that has been applied. Items addressed were the failure of the material which has cracked and chipped, the uneven finish of the material against the walls, corrective work that has left grinder marks and a variation in the color, the lack of protection during the application allowing the concrete overlay material and color to be applied to the sliding patio door frames, closet doors, door jambs, fired adobe block walls and decorative tile base at the entry. Continuing his testimony at hearing, Inspector Johndrow testified at hearing that the items listed in his pre-hearing notes each constituted below standard workmanship. Sunsetf’s failed to complete this project in accordance with the plans and specifications of the parties’ contract. This also is a workmanship standards violation. He testified that he items still incomplete at the pre-hearing inspection included pre-hung doors are uninstalled; the kitchen is incomplete [no appliances, no cabinets installed]; the sliding door is not installed; the interior door jams remain incomplete; the fired adobe block had concrete splatters still remaining and showing on the block and surrounding area and windows were installed backwards. 9. The Sunset timely filed an Answer to the Complaint on November 26, 2017. The Citation and Notice of Hearing was served upon Sunset at their address of record with the Registrar of Contractors. The filing of Sunset’s Answer fairly infers it admits the citation and Notice of Hearing were received by Sunset at its address of record with the Registrar.

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. 7 See Agency Record, Pre-Hearing Inspection Notes. RECEIVED 5.22.2019 ROC LEGAL

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Complaint No. 2018A- 04723-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). At all times pertinent to the dates work was provided by Sunset to Willetts, when the Complaint was filed, when the Written Directive was issued and when the Citation was issued, Sunset was a licensee and subject to A.R.S. § 32-1101, et seq. 2. 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. 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. Sunset presented no evidence. 6. 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."). 7. “Statutes shall be liberally construed to effect their objects and to RECEIVED 5.22.2019 ROC LEGAL

promote justice.” Ariz. Rev. Stat. § 1-211(B). 8. 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).

9. The preponderance of the evidence does show that Sunset is

unscrupulous, unqualified, or financially irresponsible in that Sunset contracted for and

received payment for remodeling on the Willett home that it did not complete, closed its

business during the Willet’s project without completing it.

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: ***** 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 manner.”

12. The copies of corrective work order and the Notice of Hearing that the

registrar mailed to the Sunset at its address of record and at the address on its written answer were reasonable. Sunset is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D). 13. By its failure to appear, Sunset has presented virtually no evidence to defend its license. Sunset has failed to meet its burden of proof. 14. Sunset did repeatedly violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9-108. These workmanship deficiencies were multiple and extensive. 15. Sunset did abandon this project in violation of A.R.S. 32-1154.A.1. 16. Sunset did violate A.R.S 32-1154.A.23 by failing to comply with the written directives of the Registrar of Contractors within a reasonable amount of time RECEIVED 5.22.2019 ROC LEGAL

without valid justification. 17. Sunset did violate A.R.S. §32-1154.A.2, departure from plans. 18. That the Sunset did Sunset failed to appear at the hearing in this case,

that it failed to comply with the Registrar’s written directive and that it has admitted

every allegation of the Complaint and the Citation by its Notice of No Contest filed in

this matter are aggravating circumstances. There are no mitigating circumstances.

19. The Sunset’s license should, under the facts presented in this case, be

revoked

20. Pursuant to A.R.S. §32-1154(D), the Registrar may impose a civil penalty

of not to exceed five hundred dollars on a contractor for each violation of A.R.S. §32-

1154(A)(23).8 By its failure to comply with the ROC’s October 20, 2017 CWO, the ROC

should impose a civil penalty of $250.00.9

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter, the Contractors License of Sunset Design Build LLC, ROC License 315155 is revoked. FURTHER IT IS RECOMMENDED that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A)(5), unless Respondent tenders payment of any outstanding civil penalty.” FURTHER IT IS RECOMMENDED it be Ordered that in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $500.00 is imposed against Sunset Design Build LLC, ROC License: ROC 315155. §32-1154(D), further provides”…The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person, as defined in section 32-1101, subsection A, paragraph 6, who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.” R4-9-131. Assessment of Civil Penalties: In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person's behalf has committed one or more of the following acts in determining the gravity of the cited violation: . . . 8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. RECEIVED 5.22.2019 ROC LEGAL

Done this day, May 20, 2019. /s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors