ALJDEC decisions subject to certification as final

2018A-119-CHC-ROC · Registrar of Contractors · 2018-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Bentley McKim and Catherine Ann McKim,

COMPLAINANT,

v.

P B K Construction LLC ,

License No: 203926

RESPONDENT.

No. 2018A-119-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 12, 2018

APPEARANCES: Catherine Ann McKim, Complainant, Lisa Melton, ROC, Jim

Dimond, ROC Investigator, Chris Allison, ROC, Whitney Cunningham Esq., Attorney for the Respondent.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, P B K Construction LLC, (hereinafter, “PBK), is the holder of KB-1 Dual Building Contractor License Number 203926 issued by the Arizona Registrar of Contractors (hereinafter, the “Registrar”). The Qualifying Party and LLC Member for the License is listed of record by the Registrar as Wesley Daulto Shelton Jr. Since July 3, 2017, PBK’s License has been in suspended for lack of bond. As of the date of this Order, PBK’s License status remains suspended.

On or about May 17, 2016, Richard Bentley McKim and Catherine Ann McKim (hereinafter “McKim”) entered into a contract with PBK to, among other things, install 2 sliding doors.

On or about January 19, 2018, the Registrar received a Complaint against PBK from McKim alleging PBK poor workmanship and abandonment.

The Registrar assigned the complaint to its Investigator Jim Dimond, On or about March 15, 2018, after A Jobsite Inspection, Investigator Dimond Issued a Written Directive to PBK containing a Corrective Work Order [“CWO”] that provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 31, 2018

You are hereby directed to remedy the following violations by the appropriate means: The respondent is to install the plugs and stops on the 2 sliding doors in an appropriate manner.

Note- the remaining items listed in the complaint were adjudicated at hearing in the complainant’s previous complaint 2016-4772 and 2017-276 and cannot be readdressed.

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the CWO, on April 3. 2018, the Registrar issued a Citation against PBK, charging possible 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 a violation of A.R.S. § 32-1154(A)(22)

A hearing was held on June 12, 2018.

Investigator Dimond testified that at the JSI conducted on February 13, 2018, of the 22 separate items he was able to parse from the lengthy narratives submitted by McKim, only one was substantiated. The rest of the items were either unsubstantiated or previously addressed at hearing in case number 2016-4772. Testimony was given, evidence presented and a decision and order issued. A request for rehearing was denied and the Complainant failed to appeal the decision. The single item that was substantiated he said, was PBK failed to install plugs and stops provided by the manufacturer on the 2 sliding doors. He testified that such failure constituted poor workmanship.

Complainant testified PBK did not return to make the repairs ordered by the CWO within the 15 days allotted by the CWO. On cross-examination, Mrs. McKim testified that she learned PBK owner, Wesley Daulto Shelton Jr. that he no longer resided in Arizona and offered to pay another licensed contractor to do the work required by the CWO for him. Mrs. McKim testified that the day before the CWO deadline for compliance was occur, she was contacted by PBK’s owner and was asked for a date and time when PBK sub-contractor could have access to perform its repairs. Mrs. McKim insisted PBK do their work before the CWO deadline ran out, but PBK complained it was not reasonable and it was not able to get another contractor to her site on such short notice and added that there was an additional problem getting workers to her site because of Easter Holiday conflicts. PBK requested dates for workers to complete the work that were two weeks after the CWO deadline and Mrs. McKim refused.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish PBK’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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).

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 Arizona Administrative Code, R4-9-131 provided regarding the. 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.

The credible evidence presented at hearing established, by a preponderance, that PBK did not perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

PBK raised refusal of access to inspect and repair as justification for its failure to comply with the CWO. When a Directive is issued by the Registrar requiring a licensed contractor to undertake, perform and complete remediation for poor workmanship within a specified time period – in this case 15 days – the Contractor’s customer is well their within rights to hold the Contractor to the Registrar’s deadline. McKim did not refuse access to PBK during the 15 day CWO period. To the contrary, access was refused for PBK to do its required work after the deadline had expired. The 15 day window allotted PBK to accomplish its CWO directed task was customary and reasonable. PBK has not met its burden to prove its affirmative defense that it was denied access as a reasonable justification for its failure to timely comply with the CWO.

The credible evidence presented at hearing established, by a preponderance, that PBK violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED, it be ordered that on the effective date of this Order, P B K Construction LLC, license No: 203926 shall be revoked.

PROVIDED THAT, if P B K Construction LLC, provides the Registrar with sufficient written evidence before the effective date of this Order that it or a licensed contractor paid for by P B K Construction LLC has complied with the March 15, 2018 Directive to “install the plugs and stops on the 2 sliding doors in an appropriate manner,” then no revocation will take place.

FURTHER IT IS RECOMMENDED, it be ordered, in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $250.00 is imposed against P B K Construction LLC, License No: 203926.

FURTHER IT IS RECOMMENDED, if the Respondent fails to pay the $250.00 penalty imposed within thirty days after the effective date of this order, then in accordance with A.R.S. §32-1154(D), the P B K Construction LLC, License No: 203926 shall be revoked, effective on such deadline date. In such case, 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, June 23, 2018.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors