ALJDEC decisions subject to certification as final

2018A-04845-ROC · Registrar of Contractors · 2019-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2019 APPEARANCES: Andrew Peshek, Esq. appeared on behalf of Complainant John Ritter. Respondent Jack Lee Depew, Jr. appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________FINDING S OF FACT 1. On March 14, 2019, the Arizona Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on April 16, 2019 by the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Jack Lee Depew, Jr. DBA: Depew Enterprises (“Depew”) holds license number 252248 issued by the Registrar. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, the Registrar alleges that Depew may have violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. sections 32-1154(A)(8),(A)(16), and (A)(22). 5. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Depew’s license. 6. Depew holds a CR-61 Carpentry, Remodeling and Repairs license. 7. On or about November 30, 2017, Complainant John Ritter and Depew entered into a contract wherein Depew would install a new recreational vehicle (“RV”) garage at Mr. Ritter’s home for $80,635. 8. Mr. Ritter paid Depew two checks totaling $40,317.50 for the project. Depew deposited both checks. 9. On or about November 30, 2017, Depew began work on the project. 10. On or about January 4, 2018, Depew stopped work. 11. On or about October 12, 2018, the Registrar received a Complaint from Mr. Ritter alleging poor work on the part of Depew. 12. On or about December 3, 2018, Registrar Investigator Jack Grimm conducted a jobsite inspection. Investigator Grimm determined that Depew had contracted outside the scope of his license because Depew was only allowed to work on existing structures under the CR-61 license. Investigator Grimm also observed that the stem wall was built too low by approximately 5.5 inches. The notes from Investigator Grimm’s job site inspection provided, in relevant part, as follows: The concrete that would be poured for the floor in the RV garage if installed per plans would be too low against the direct adjacent driveway and sidewalk. Property owner states it was agreed that the height was to low and the contractor Jack Depew agreed to address it as two engineered corrections have been supplied (PH Structural) for a repair and a height addition to be added to the top of the existing stem wall. That correction has not taken place and that any cement that would be poured would be too low against the driveway and sidewalk.

13. On December 6, 2018, Investigator Jack Grimm issued a Directive. The Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on December 24, 2018. .

You are hereby directed to remedy the following violations by the appropriate means:

1. Complete RV Garage per contract. 2. Correct height of stem walls on RV garage to be 6 inches above (per plan) of adjacent heights of existing sidewalks and driveway. 3. Correct installed anchor bolts at RV garage stem walls to be per plan and shear wall schedule.

NOTE: All work listed above is out of the scope of CR 61 license #252248. Please follow instructions listed below as to how to satisfy this directive as stated “You may not perform work that is outside the scope of your license………”

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant. (Emphasis Added.)

14. Depew did not pay a licensed contractor to correct the work during during the time period for compliance under the Directive. Depew did not reach a financial settlement with Mr. Ritter. 15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 16. A hearing was held on April 16, 2019. 17. At hearing, John Ritter provided his own testimony. Jack Lee Depew testified on behalf of himself. 18. Investigator Grimm testified regarding his investigation of the complaint and issuance of the Directive. 19. Mr. Ritter asserted that Mr. Depew performed poor work in connection with the installation of the RV garage. Mr. Depew did not dispute that the work was substandard. Mr. Depew asserted that the general contractor was at fault. 20. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on May 6, 2019, Depew’s license was first issued on February 1, 2009, and is active. Such prior License record also shows that there is only one open complaint against Depew’s license. The Registrar has never before taken disciplinary action against Depew’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties. 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). 8. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118. 9. 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. 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.

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 12. The preponderance of the evidence shows that Depew did not complete the construction project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(8). 13. The preponderance of the evidence shows that Depew contracted outside the scope of his CR-61 Carpentry, Remodeling and Repairs license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16). 14. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 252248 of Jack Lee Depew, Jr., DBA: Depew Enterprises for one day. Done this day, May 6, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the Registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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