ALJDEC decisions subject to certification as final

2018A-1589-CHC-ROC · Registrar of Contractors · 2018-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Todd Carter Key,

COMPLAINANT,

v.

LDO Custom Renovation LLC,

License No: 272552

RESPONDENT.

No. 2018A-1589-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 7, 2018

APPEARANCES: Todd Key, Complainant, Jack Grimm, Investigator, Registrar

of Contractors

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 against the Respondent for poor and below standard workmanship abandonment of a contracted residential remodeling project.

On June 20, 2018, the Registrar issued a Notice of hearing setting a hearing at 8:30 am on August 7, 2018. The Registrar mailed copies of the Notice of hearing to the respondent 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.”

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 30 minutes, Respondent did not appear through an authorized member, employee or attorney. Consequently, Respondent did not present any evidence to defend its license.

A hearing was conducted on August 7, 2018 before the Arizona Office of Admistrtive Hearings.

Registrar’s Investigator Jack Grimm testified that at his job site inspection [JSI] conducted May 10, 2018, in follow-up to the Complaint. Notice of the inspection was provided to the Respondent at its address of record. At the JSI, the Complainant was present but the Respondent did not appear. Mr. Grimm noted that he observed 17 separate items involving poor or substandard workmanship issues and concluded that the Respondent had abandoned the project. Mr. Grimm testified that he had reviewed the contract of the parties that was entered into on July 17, 2017. He stated that in conversation with the Complainant and review of the Complaint, the Respondent had agreed to a completion date within 90 days of the date of the contract. At the time of the JSI, Mr. Grimm estimated that over 250 days had passed since the contract was executed and that little to nothing had been done on the job site by the Respondent.

The Registrar of Contractors issued a written Directive containing a Corrective Work Order [CWO] to the Respondent on May 14, 2018 as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 31, 2018. You are hereby directed to remedy the following violations by the appropriate means:

Complete the remodeling project per contract with all required city inspections.

In the CWO, the Respondent was given until 5:00 PM, May 31, 2018 to notify the ROC of its compliance with the CWO. The ROC having not received a notice of compliance from the Respondent, after 5:00 PM on May 31, 2018, Mr. Grimm testified that he had a conversation and an e-mail from the Complainant indicating that he had heard nothing from the Respondent regarding the CWO, that no work had been done and that his residence was in the same condition as it was on the date of the JSI.

On June 1, 2018, the Registrar issued its Citation against the Respondent alleging three violations:

A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”).

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

A violation of 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.

Mr. Todd Key, the Complainant, testified that he had paid the Respondent an advanced deposit of $10,000.00 On the first two or three days Respondent was on the site, the kitchen cabinets and the flooring were demolished. He stated that for the next several months, the Respondent’s crew showed up only sporadically, each time arriving late around 10:00 AM and working only a half day each time. On September 8, 2017, Respondent requested payment again to purchase tile, windows and to pay for concrete. On September 8, 2017, Respondent complied with payment by check to the Respondent of another $10,000.00 The Respondent removed two exterior glass gate doors leading to the Complainant’s swimming pool to pour concrete. The glass doors were left outside leaning on a wall. During a strong storm with strong wind, the glass doors were blown into the swimming pool. He said that doors were never replaced and the doorway has been boarded up with plywood the Complainant applied ever since. On March 8, 2018, Mr. Key paid Respondent an additional $3,000.00 for tile. No tile, no windows and no doors have ever been delivered to the job site notwithstanding Complainant’s advanced payment to the Respondent for the materials. Complainant estimated that the last time any of Respondents personnel were at his residence was April 10, 2018, just after his Complaint was filed. He said after the Complaint was filed, Respondent made several telephone calls to Mr. Key promising to come back to commence work on the project, but Respondent never did come back.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793-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). PVTS LLC dba Phoenix Valley Tree Service 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.

“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).

The Respondent 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).

The preponderance of the evidence shows that by taking $26.000.00 in payments from the Complainant for materials that were to have been ordered but were never provided to Complainant, that by contracting for work that was never completed and by leaving Complainant’s residence without flooring, operating electrical lines and a boarded up exterior entry doorway that Respondent is an unscrupulous, unqualified, or financially irresponsible contractor.

The Notice of Hearing that the registrar mailed to the Respondent was mailed to Respondent’s address of record with the Registrar. Thus, the Respondent is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D). The CWO was mailed by the Registrar to the same address of record.

By its failure to appear, Respondent has presented virtually no evidence to defend its license. Thus, Respondent has failed to meet its burden of proof.

By a preponderance of the evidence presented, Respondent did abandon this project in violation of A.R.S. 32-1154(A)(1)

By a preponderance of the evidence presented, Respondent 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.

By a preponderance of the evidence presented, Respondent did repeatedly 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. These workmanship deficiencies were multiple and extensive. Moreover, the Respondent has ignored every effort of the Registrar to induce the Respondent to remedy its shoddy work.

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 Registrar Inspector’s inspections, that Respondent left the Complainant’s home in a state of disarray having demolished areas of Complainant’s home without returning the areas to the condition agreed to under the contract between the parties, having barely conducted any work on this project for over a year without excuse or justification, having received money from the Complainant for materials and supplies that were never delivered and that the Respondent failed to appear at the hearing in this case – are aggravating circumstances.

The Respondent’s license, under the facts and aggravating circumstances presented in this case, should be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter LDO CUSTOM RENOVATION LLC, License No: 272552 be revoked.

Done this day, August 7, 2018.

Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors