ALJDEC decisions subject to certification as final

2018A-3763-ROC · Registrar of Contractors · 2019-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2019 APPEARANCES: Complainant Kevin Jay Carpenter appeared on behalf of himself. Respondent Levi Cooper Brownlee appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Levi Cooper Brownlee DBA: Levi Brownlee (“Brownlee”) holds Arizona contracting license No. 253671. 2. In March of 2018, Restoration Services hired Brownlee to improve a drainage system located at 2701 W. Bulla Drive, Payson, Arizona, 85541. The owner of the jobsite was Complainant Kevin Jay Carpenter. 3. On or about March 2, 2018, Brownlee began work at the jobsite. 4. On or about March 5, 2018, Brownlee stopped the work. 5. On or about August 14, 2018, the Arizona Registrar of Contractors (“Registrar”) received a complaint from Mr. Carpenter alleging poor work on the part of Brownlee. 6. On or about September 7, 2018, the Registrar’s Investigator, Chris Allison, conducted a job site inspection. 7. On or about September 10, 2018, the Registrar issued a Directive to Brownlee. The Directive provides, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on September 27, 2018. You are hereby directed to remedy the following violations by the appropriate means:

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

2. The Fortiflash used to secure the pond liner to the block wall is not the appropriate material.

Correct by appropriate means. 8. Brownlee did not receive the Directive. Brownlee did not comply with the Directive by the due date. 9. On or about October 9, 2018, the Registrar issued a Citation against Brownlee’s contractor’s license. The Registrar alleged that Brownlee violated Ariz. Rev. Stat. section 32-1154 (A)(3) and (A)(22). 10. Brownlee filed a timely response to the Citation. 11. A hearing was held on February 12, 2019. 12. Mr. Carpenter testified on behalf of himself. Brownlee testified on behalf of himself. Investigator Allison testified regarding his investigation into the complaint and issuance of the Directive. 13. Mr. Allison explained that when the Registrar prepares a Directive, the document is automatically populated with the contractor’s current address of record in the Registrar’s database. 14. Mr. Carpenter, Brownlee, and Investigator Allison all agreed that the wrong flashing was used in connection with the drainage project. Brownlee testified that the address listed on the Directive was his old residential address. Brownlee did not even contend that he had updated his address with the Registrar. 15. Administrative notice is taken of Respondent’s prior License record on March 1, 2019. Such prior License record reflects that Respondent’s License No. 253671 was first issued on March 14, 2009, and is active. Such prior License record also reflects that is one open complaint against Respondent’s license, and that Respondent’s license has never been disciplined. CONCLUSIONS OF LAW 1. 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. 2. “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). 3. “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). 4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. 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). 8. 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. It was undisputed that the incorrect flashing was used in connection with the project. 11. The preponderance of the evidence shows that Respondent’s work failed to meet minimum workmanship standards, in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 12. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of Ariz. Rev. Stat. section 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Levi Cooper Brownlee DBA: Levi Brownlee License No: 253671 for one day. Done this day, February 12, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the Registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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