FINACT2018A-1904-CHC-ROC.pdf

2018A-1904-CHC-ROC · Registrar of Contractors · 2018-10-09

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Luis M. Carpinteiro , Case No. 2018-1904 COMPLAINANT, Docket No. 2018A-1904-CHC-ROC v. Lopez Roofing LLC , FINAL ADMINISTRATIVE DECISION License No. 140050, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. MODIFICATION AND WRITTEN JUSTIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed the Decision and modifies it. The Administrative Law Judge Decision stated that the Registrar may impose a civil penalty for a

violation of A.R.S. § 32-1154(A)(3). ALJ Dec. 7:19-21. Pursuant to A.R.S. § 32-1154(E) and (F) the

Registrar may only impose a civil penalty for violations of A.R.S. § 32-1154(A)(17) and (22).

The administrative law judge found that Complainant presented sufficient evidence to support a

finding that the Respondent violated A.R.S. § 32-1154(A)(3). ALJ Dec. 6:25-27 and 7:5-7. However,

the administrative law judge then found that Complainant failed to present sufficient evidence to support

a finding that Respondent failed to take appropriate corrective action to comply with the Directive

because Respondent had valid justification for not correcting the deficient work. ALJ Dec. 7:13-18.

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 The administrative law judge then recommended that Respondent be disciplined by suspension for 7 days. ALJ Dec. 7:23-24. The Registrar modifies the conclusion that Respondent violated A.R.S. § 32-1154(A)(3), because the administrative law judge concluded that Respondent had a valid justification for failing to take corrective action required by the Directive. ALJ Dec. 7:13-18. Contractors should be afforded a

reasonable opportunity to cure an infraction before discipline will be imposed:

“A breach cannot be said to be material if it is curable, notice to cure is given, and prompt steps are taken to cure or to offer assurances of cure. The right of a breaching party to be given an opportunity to cure its own material breach is an ancient equitable principle…. Cure is relevant to materiality by virtue of its focus on elimination of the breach and its implied assurance of intent to tender adequate future performance…. Providing a cure notice of curable breaches deemed by the nonbreaching party to be sufficiently material to warrant termination for cause is a fundamental prerequisite to termination…. Unless expressly waived, the right to cure is implied in every contract as a matter of law.” Source: Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 18:15 (West Group 2002).

See Registrar of Contractor’s Substantive Policy Statement 2017.01.

CONCLUSION The Registrar modifies the Administrative Law Judge Decision by: • Striking “including imposition of a civil penalty” on page 7, lines 20-21. • Replacing lines 23-24 on page 7 of the Decision with, “IT IS RECOMMENDED that this matter be dismissed.” The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on November 13, 2018.

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated this 4th day of October 2018.

Registrar of Contractors /s/ Nicole Sornsin Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail this 4th day of October to: Respondent Lopez Roofing LLC 223 W Teton St Tucson, AZ 85756 Respondent’s Attorney Jennifer J. Maldonado, Esq. 2478 E River Rd Tucson, AZ 85718

Complainant Luis M. Carpinteiro 870 N Smoketree Cir Tucson, AZ 85745 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Case No. 2018-1904 / mm

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762