ALJDEC decisions subject to certification as final

2018A-05328-ROC · Registrar of Contractors · 2019-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22, 2019 APPEARANCES: Michelle M. Butler, Complainant, Steven Klein, ROC Inspector [appearing telephonically]. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a Complaint[1] against THD for poor and below standard workmanship and failure to follow plans and specifications.[2] On February 13, 2019, the Registrar issued a Notice of hearing setting a hearing at 8:30 am on March 22, 2019. The Registrar mailed copies of the Notice of hearing to THD, T H D Construction LLC, [hereinafter, “THD”], at THD’s address of record provided by THD to the Registrar. 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.” THD 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, THD did not appear through and authorized member, employee or attorney. Consequently, THD did not present any evidence to defend its license. A hearing was conducted on March 22, 2019 and proceeded without the Respondent appearing. ROC Investigator Steven Klein’s testified that he conducted a Job Site Inspection [“JSI”] on January 4, 2019. The Mr. Klein thereafter issued a Corrective Work Order [CWO] to THD on January 4, 2019 as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 24, 2019. [emphasis in original]. You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 5: Vent on final bill was not installed but is on the invoice for $1200+protit • Plans call for an exhaust fan that wasn’t installed. • Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturers’ installation instructions.

Complaint Item 6: Grab bar in bathroom currently not installed but was billed • Verified the Grab bar wasn’t reinstalled, Respondent agreed to correct.

Complaint Item 7: Pocket door installed that does not stay open, installed incorrectly • Verified pocket door and hardware doesn’t function as intended.

Complaint Item 8: Emergency exit door handle not installed nor correct one but billed • Verified door hardware is missing. • Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, and manufacturers’ installation instructions.

Complaint Item 9: City inspectors requiring corrections where not schedule or completed • Complainant states they received a temporary final. • Respondent shall complete project per original contract agreement, properly executed change orders, building codes, and political subdivisions of the state and manufacturers installation instructions.

Complaint Item 12: 22oV Outlets all wired differently and need corrected by another contractor • Respondent shall complete project per original contract agreement, properly executed change orders, building codes and manufacturers installation instructions.

Complaint Item 13: Lock installed on pocket door not correct per architecture plans • Verified pocket door and hardware doesn’t function as intended.

Complaint Item 14: Credit needed for chipped bathroom sink (new installed} • Verified bath sink has been repaired and Complainant isn’t satisfied with the repair. I agree the repair may not last the life of the sink. Respondent agreed to correct.

7. In the CWO, THD was given until 5:00 p.m. on January 24, 2019 to notify the ROC of its compliance with the CWO. The ROC having not received a notice of compliance from THD, on Feb 2, 2019, Investigator Klein received e-mail from the Complainant indicating that “The general contractor has not stepped foot on our property since our meeting on January 14, 2019.[3] 8. On February 11, 2019, the ROC issued its citation against THD charging two alleged violations:

a. 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

b. A violation of A.R.S. § 32-1154(A)(22)[4]

CONCLUSIONS OF LAW The Registrar of Contractors has jurisdiction over Complaint No. 2018A- 05328-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). T H D Construction LLC, is a licensee. 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. 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). “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). THD presented no evidence. 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). 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.

Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” The copies of Corrective Work Order and the Notice of Hearing that the Registrar mailed to THD at its address of record and at the address on its written answer were reasonably calculated to obtain service of the Notice of Hearing... THD is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D). THD did not appear for hearing. THD has presented virtually no evidence to defend its license. Thus, THD has failed to meet its burden of proof. THD did 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. THD did violate A.R.S. §32- 1154.A.2, departure from plans. THD did violate A.R.S 32-1154.A.23 by failing to comply with the written Directives of the Registrar of Contractors, i.e. the CWO, within a reasonable amount of time without valid justification. THD has been licensed since 2009.[5] Since licensure, THD has no record of disciplinary action taken against it by the ROC. THD’s record with the ROC is a mitigating circumstance. That the Respondent did ignore each effort of the ROC to address the concerns of the Complainant - in that the Respondent did not appear for the ROC Inspector’s JSI, made no effort to comply with the CWO and that the Respondent failed to appear at the hearing in this case - are aggravating circumstances which tends to show that THD resists submitting regulation by the Registrar. The aggravating circumstances outweigh the mitigating circumstances. The Respondent’s license should, under the facts presented in this case, be suspended for not less than five (5) days. 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).[6] By its failure to comply with the ROC’s October 20, 2017 CWO, the ROC should impose a civil penalty of $1,000.00.[7]

RECOMMENDED ORDER IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter, T H D Construction LLC, ROC Licenses: ROC 256983, and ROC 261023 is suspended for five (5) days. FURTHER IT IS RECOMMENDED it be ordered that in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $1,000.00 be imposed against T H D Construction LLC, ROC Licenses: ROC 256983 and ROC 261023.

FURTHER IT IS RECOMMENDED that if T H D Construction LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such deadline date. 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.

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 9, 2019. /s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Complaint was filed January 4, 2019. [2] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records. [3] See, Feb 2, 2019 e-mail from Complainant to Mr. Klein, Agency Record, page 19. [4] A.R.S. § 32-1154(A)(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.” [5] Data obtained via the AZ Registrar’s Public Access Website on April 9. 2019. [6] §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.” [7] 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.

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