ALJDEC decisions subject to certification as final

2018A-05298-ROC · Registrar of Contractors · 2020-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tamara R Ring,

COMPLAINANT

RML Residential Properties LLC,

DBA: Village Construction,

License No. ROC 283087,

RESPONDENT

No. 2018A-05298-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: No hearing was conducted

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 29, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 27, 2019 at the Office of Administrative Hearing. The matter was continued and the hearing was rescheduled to convene on February 14, 2020.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

ROC issued to Respondent RML Residential Properties LLC a Citation dated January 10, 2019. Through that Citation ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

Respondent holds license No. 283087 issued by ROC.

On January 21, 2020, Respondent filed a Notice to the effect that judgment should be entered against it and the hearing canceled.

On January 28, 2020, Complainant Tamara R. Ring requested that the hearing be vacated in light of Respondent’s admission of fault.

CONCLUSIONS OF LAW

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.

“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).

“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).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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:

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3. Violation of any rule adopted by the registrar.

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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

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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.

Ariz. Admin. Code section R49108 provides that “A contractor shall perform all work in a professional and workmanlike manner[,] ” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”

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).

Respondent has acknowledged that judgment should be entered against it. Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

Consequently, Respondent’s license should be suspended for two days and Respondent should be ordered to pay to ROC a civil penalty of $250.00.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter RML Residential Properties LLC’s license number 283087 be suspended for two days;

IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against RML Residential Properties LLC’s license number 283087a civil penalty of $250.00.

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.

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-137160-45720000Done this day, February 3, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000