ALJDEC decisions subject to certification as final

2018A-04949-ROC · Registrar of Contractors · 2019-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2019 APPEARANCES: Complainant Jim P. Sanchez appeared on behalf of himself. Respondent Peter Reginald Austen appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT

1. On or about January 8, 2018, Complainant Jim P. Sanchez and Respondent Peter Reginald Austen, DBA: Austens Masonry, (“Austens Masonry”), entered into a residential remodeling contract wherein Austens Masonry would install waterline pool tile at Mr. Sanchez’s home. 2. Peter Reginald Austin is the qualifying party of Austens Masonry. 3. On or about March 20, 2018, Austens Masonry began work at Mr. Sanchez’s home. 4. On or about October 18, 2018, the Registrar received a complaint from Mr. Sanchez alleging poor workmanship and abandonment on the part of Austens Masonry. 5. On or about November 13, 2018, Michael Springer, an investigator for the Arizona Registrar of Contractors (“Registrar”), conducted a job-site investigation. Investigator Springer observed that Austens Masonry did not complete the work required under the contract. 6. On November 14, 2018, Investigator Springer issued a Directive. The Directive stated that Austens Masonry was required to comply with the directive by 5:00 p.m. on November 30, 2018. 7. On November 19, 2018, the Directive was returned to the Registrar as undeliverable due to an insufficient address. 8. The November 19, 2018 Directive was addressed to “Peter Reginald Austen”, instead of “Peter Reginald Austen DBA: Austen’s Masonry”.

9. The Directive was not reissued to “Peter Reginald Austen DBA: Austen’s Masonry”. 10. There was no written evidence presented at hearing to show that the Registrar mailed a notice regarding the jobsite inspection and the complaint to “Peter Reginald Austen DBA: Austen’s Masonry.” 11. On December 7, 2018, the Registrar issued a Citation alleging that Austens Masonry may have violated Rule 4-9-108 and thereby A.R.S. §§ 32-1154(A)(1), (A)(3), and (A)(22). 12. On December 22, 2018, Mr. Austen filed a timely answer to the Citation alleging that Mr. Sanchez informed him that Austens Masonry was not allowed back on Mr. Sanchez’s property. Mr. Austen also contended that Mr. Sanchez hired another contractor to repair the work, and that he was never given the opportunity to see the alleged deficient work. 13. The matter was referred to the Office of Administrative Hearings. 14. A hearing was held on April 9, 2019. 15. At hearing, Investigator Springer provided testimony regarding the job site inspection and the Directive. Investigator Springer testified that Austens Masonry was invited to the job site inspection but was not present for the inspection. Investigator Springer explained that he did not conduct a compliance inspection, because he was informed that no corrective work had been completed. 16. Mr. Sanchez testified that Austens Masonry abandoned the project and performed poor work in connection with the installation of the waterline pool tile. Mr. Sanchez denied that he told Mr. Austen that he could not come back to his property. 17. Mr. Sanchez admitted that he hired another contractor to repair the mistakes made by Austens Masonry. Mr. Sanchez testified that he hired the contractor in May of 2018 and that the contractor completed the work within a month. 18. Mr. Austen asserted that he did not receive the Directive. Mr. Austen initially testified that he first learned of the complaint in January of 2019 but acknowledged later that it may have been in December of 2018 when he filed the answer to the Citation. Mr. Austen stated that the Registrar had been sending notices to his personal address instead of his post office box. 19. Administrative notice is taken of Respondent’s prior License record on April 29, 2019. Such prior License record reflects that Respondent’s License No. 154692 was first issued on July 18, 2000, and is current. Such prior License record also reflects that Respondent’s license has never been disciplined and that there is only one open complaint against Respondent’s license. 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. A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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.” A.R.S. § 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. 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.

***** 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. Construction is not a perfect art, however, and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked. 10. Upon consideration of all the evidence, the Administrative Law Judge finds that the work performed by Austens Masonry was modified by a second contractor before the complaint was filed in this matter. The modification precludes Mr. Sanchez from prevailing in this matter. Additionally, the preponderance of the evidence shows that the Austens Masonry of the Directive. The evidence presented at hearing shows that the Directive was returned to the Registrar as undeliverable due to an insufficient address. There was no evidence that the Directive was reissued with the correct address. However, the evidence presented at hearing shows that the Citation was correctly addressed to “Peter Reginald Austen, DBA: Austens Masonry.” This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be dismissed. 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, April 29, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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