ALJDEC decisions subject to certification as final

2018A-1063-CHC-ROC · Registrar of Contractors · 2018-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pat Staflin,

COMPLAINANT,

v.

CKBR LLC dba, Complete Kitchen and Bath Remodeling,

License No: 266889 and 297310

RESPONDENT.

No. 2018A-1063-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 14, 2018.

APPEARANCES: Pat Staflin, Complainant, Wally Staflin, Complainant’s

spouse, Steve Lawton, Registrar of Contractors Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

The Registrar referred this 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 regarding a remodel of two bathrooms at Complainant’s residence.

Respondent [hereinafter “CKBR”] is the holder of two licenses, 266889 and 297310, first issued by the Registrar of Contractors in July of 2010. The information of record from the Registrar indicates both licenses were revoked as of August 8, 2018.

On, June 19, 2018, the Registrar issued a Notice of Hearing setting a hearing at 8:30 am on July 25, 2018. The matter was subsequently continued on Motion of the Complainant to August 14, 2018 at 8:30 AM in Phoenix, Arizona. The Registrar mailed copies of the Notice of Hearing and Minute Entry continuing the hearing to CKBR at its address of record.

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.”

CKBR 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, CKBR did not appear through an authorized member, employee or attorney. Consequently, CKBR did not present any evidence to defend its license.

A hearing was conducted on August 14, 2018.

Complainant testified that she contracted with CKBR to re-model two of her residence bathrooms. Since the commencement of the work by CKBR until today, she testified that she has had no running water in one of her bathroom showers, has no water in the bathroom sinks and the tile work that was done was very poor and unsightly. Although she paid CKBR $26,627.21 plus $2,409.00 in change orders, she has also incurred additional expenses out of pocket for additional materials in the amount of $2,928.51.

ROC Investigator Steve Lawton testified that at his site inspection conducted March 36, 2018 in follow-up to the Complaint, that Mike Ramone of CKBR was present along with the Mrs. Pat Staflin. Notice of the inspection was provided to CKBR at its address of record. Mr. Lawton testified consistent with his job site inspection notes as follows:

A jobsite inspection was performed with all parties present. Complainant alleges poor work during re-construction of two bathroom at Complainant's residence. Permits not pull for project.

Complaint Item 3: Guest bath deco tile strip: shower head and water controlare (sic) off center. Investigator’s Observation: It was observed that the plumbing fixtures are not centered in deco strip. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Complaint Item 4: Holes in bedroom wall when plumber rerouted pipes.

Investigator’s Observation: It was observe that the wall has not been repaired at time of inspection. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Complaint Item 6: Switch plate installed poorly. Investigator’s Observation: It was observed that the receptical (sic) is not flush with wall. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Complaint Item 7: Permits Required. Investigator’s Observation: Substantiate. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2); Namely R4-9-108

The Registrar of Contractors issued a corrective work order [CWO] to CKBR on March 28, 2018 as follows:

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

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

Correct all deficient issues per the local jurisdiction.

Complete project per agreement between parties and any deficient workmanship issues as brought up at the jobsite inspection.

In the CWO, CKBR was given until April 16, 2018 to notify the ROC of its compliance with the CWO. The ROC having not received a notice of compliance from CKBR, on May 31, 2018, a compliance inspection was conducted by Investigator Lawton who testified consistent with his record of the notes of his findings as follows:

Complainant alleges poor work during re-construction of two bathroom at Complainant's residence. Permits were finally pulled for project. At the time of the Compliance inspection two workers were present working for the Respondent installing tile. Completion of the project was not completed at time of compliance inspection and is still a long ways off per pictures taken at time of compliance inspection. Directive was issued 03/28/2018 and to be completed by 04/16/2018.

Compliance Findings:

1. The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive. Completed

2. Correct all deficient issues per the local jurisdiction. Could not determine at the time of inspection.

3. Complete project per agreement between parties and any deficient workmanship issues as brought up at the jobsite inspection. Not Completed

On June 1, 2018, the ROC issued its citation against CKBR charging three alleged violations:

Charge 1: 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).

Charge 2: A violation of A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter.”). 1158(A): A violation of A.R.S. § 32-1158(A)

Charge 3: A violation of A.R.S. § 32-1154(A)(22)

A review of CKBR’s license history of record with the ROC indicates that the licenses of the CKBR were revoked on August 8, 2018. Since the issuance of the licenses in July of 2010, CKBR has been disciplined five times and has 18 currently pending complaints.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint 2018A-1063-CHC-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). CKBR is a licensee at the time of the contract in this case, at the time of the Complaint and at the time of the Citation in this case.

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).

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).

CKBR did not appear at the hearing and 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.

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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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The copies of CWO and the Notice of Hearing that the registrar mailed to CKBR at its address of record was reasonable. CKBR is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D).

Inasmuch as CKBR has presented virtually no evidence to defend its license, then CKBR has failed to meet its burden of proof.

By a preponderance of the evidence, CKBR 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 CWOs, within a reasonable amount of time without valid justification.

By a preponderance of the evidence, CKBR 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.

By a preponderance of the evidence, CKBR did violate A.R.S. § 32-1154(A)(12) by it failure of its agreement with Complainant to state the completion date of the project to state that the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

CKBR’s record of discipline by the ROC is an aggravating circumstance.

CKBR’s license should, under the facts presented in this case, be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that as of the effective date of the final Order in this matter CKBR LLC d/b/a, Complete Kitchen and Bath Remodeling,

License Numbers 266889 and 297310 shall be revoked.

Done this day, August 20, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors