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2018A-3782-CHC-ROC · Registrar of Contractors · 2021-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chase McCombs, No. 2018A-3782-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION A and W Remodeling LLC, ROC License: ROC 211961, RESPONDENT

HEARING: June 8, 2020. APPEARANCES: Chase McCombs, Complainant, appeared on his own behalf. Richard Ward appeared on behalf of A and W Remodeling, LLC, Respondent. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera. _____________________________________________________________________ FINDINGS OF FACT 1. On October 2, 2005, the ROC issued License No. 211961 for Specialty Dual CR-61 Carpentry, Remodeling, and Repairs to A and W Remodeling, LLC (“Respondent”). Respondent’s address of record for the license is 42011 North 7th Street, Desert Hills, AZ 85086-5614. Kevin Lee Allen is listed on the license as Qualifying Party and Member. Richard James Ward is listed on the license as Member.1 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 211961, as reflected on the ROC’s public website on June 8, 2020. Such prior License record reflects that Respondent’s license is currently active. The record also reflects that there are two open complaints against Respondent’s license, one of which is presumed to be related to this matter. There are two resolved/settled cases reflected on the license and one disciplined case. Respondent has an active $6,750.00 surety bond issued through Merchant’s Bonding Company effective February 26, 2020.2 3. In June 2016, Chase McCombs (“Complainant”) entered into a written contract agreement whereby Respondent agreed to remodel the interior of Complainant’s residential home located at 42216 N. 7th Street, Phoenix, AZ 85086 for the sum total of

1 See https://roc.az.gov/contractor-search?Id=a0ot0000000NmtrAAC. Id. $19,000.00. The project commenced on or about June 8, 2016, and stopped on or about October 15, 2017. Complainant paid Respondent a total $18,500.00 by the time Respondent stopped working. 4. On or about August 15, 2018, the ROC received a workmanship complaint from Complainant. On the complaint, Complainant indicated poor workmanship and abandonment as the basis for the complaint. 5. On or about August 22, 2018, the ROC issued a Jobsite Inspection Notification letter to the parties, providing proper notice to them, and advising that an onsite review would be conducted at the project site by an ROC investigator on September 20, 2018. 6. On or about September 20, 2018, ROC investigator Jim Dimond (“Investigator Dimond”) conducted a review of the estimates that were agreed upon between the parties. Investigator Dimond also inspected the work that had been done on the project to date and took 25 photographs of the property. Respondent was not present at the Jobsite Inspection due to an injunction of harassment in place by Respondent against Complainant. 7. On or about December 5, 2018, Investigator Dimond issued a Directive from the Registrar to Respondent because he substantiated Complainant’s allegation that Respondent’s work failed to meet minimum ROC workmanship standards. Specifically, Respondent was ordered to remediate complaint items 1-5, 7, 9-10, and 12 via appropriate means. Respondent was put on notice that it had until December 21, 2018, to notify the ROC of its compliance with the Directive or face discipline pursuant to ARIZ. ARIZ. REV. STAT. § 32-1154(B) and 32-1154(E). 8. On or about December 28, 2018, Respondent requested an extension due to the injunction obtained by Respondent against Complainant. Respondent requested a second extension thereafter. The ROC granted the two extensions to Respondent. Respondent had until January 14, 2019, to comply with the Directive. Respondent failed to timely comply with the Directive. 9. On or about May 22, 2019, the ROC issued a Citation to Respondent for alleged violations of ARIZ. REV. STAT. §§ 32-1154(A)(2), 32-1154(A)(3), 32-1154(A)(16) 2 and 32-1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108. Respondent was given until June 6, 2019, to respond with its Answer or face discipline pursuant to ARIZ. REV. STAT. § 32- 1154(B). 10. On or about June 6, 2019, Respondent filed an Answer to the Citation. In its Answer, Respondent indicated defenses as to why it was not responsible for any violations of the statutes on the Citation. 11. On or about June 10, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 22, 2019. There were multiple continuances requested on the case and the case was ultimately heard on June 8, 2020. 12. Per the Citation, the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges: Charge 1: A violation of ARIZ. REV. STAT. § 32-1154(A)(3)-R4-9-108. (“Violation of any rule adopted by the Registrar; Namely ARIZ. ADMIN. CODE R4-9-108.”). Charge 2: A violation of ARIZ. REV. STAT. § 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. 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.”). Charge 3: A violation of ARIZ. REV. STAT. § 32-1154(A)(16). (“Knowingly contracting beyond the scope of the license or licenses of the licensee.”) Charge 4: A violation of ARIZ. REV. STAT. § 32-1154(A)(2). (“Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”) All errors in original.

13. On or about July 17, 2019, a prehearing inspection was conducted by Investigator Dimond. Investigator Dimond observed tile work being completed by a subcontractor. 3 14. On or about April 1, 2020, Investigator Dimond conducted a second prehearing inspection. He observed that the flooring was still unfinished. Investigator Dimond also observed numerous holes in the wall due to electrical work that was done. An electrical circuit was added and the drywall was not patched up thereafter. HEARING EVIDENCE 15. Investigator Dimond testified to his observations during the Jobsite Inspection and both prehearing inspections. Investigator Dimond opined that Respondent failed to comply with the Directive and performed work that did not comply with industry standards. 16. At the hearing, Complainant testified that, at all times relevant, he was the owner of 42216 N. 7th Street, Phoenix, AZ 85086. Complainant hired Respondent to remodel his house. Complainant and Respondent were neighbors. Respondent volunteered to do the project. 17. Complainant testified that Respondent changed employees constantly. As a result, parts of the project were incorrect and not in accordance with the plans. Complainant’s house was in bad shape due to holes in the wall and other poor work. The only items completed by Respondent, per the Directive, were the electrical work and the installation of the smoke detectors. 18. Respondent sent emails to Complainant requesting a settlement amount. Complainant was unable to secure a contractor who would finish and/or fix the project and thus, was unable to give Respondent a settlement amount. Complainant endured hardship due to the condition of his house and wanted his house finished. Complainant submitted photos that illustrated Respondent’s work. 19. Richard Ward testified on behalf of Respondent. Mr. Ward stated that the electrical work was completed. He acknowledged that he had plenty of time to complete the work but that he had a hard time obtaining subcontractors to finish the job. He was willing to complete the job as long as he could find subcontractors to do the work. Respondent requested an amount to give Complainant so that Respondent could hire someone to finish the work. CONCLUSIONS OF LAW 4 1. This matter lies within the Registrar’s jurisdiction. See ARIZ. REV. STAT. § 32-1101 et seq. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See ARIZ. REV. STAT. §§ 41-1092.04 and 41-1092.05(D). 2. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. 3. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(A) and ARIZ. ADMIN. CODE 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). 4. ARIZ. REV. STAT. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.” 5. ARIZ. ADMIN. CODE 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.” 6. ARIZ. REV. STAT. § 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.”

5 7. ARIZ. REV. STAT. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” 8. ARIZ. REV. STAT. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of: (a) [p]lans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. (b) [a] building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.” 9. ARIZ. REV. STAT. § 32-1154(E) holds, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.” 10. Complainant established, by a preponderance of the evidence, that work performed by Respondent was not done in a professional and workmanlike manner. Thus, there are sufficient facts in the record to conclude that Respondent violated ARIZ. REV. STAT. § 32-1154(A)(3), namely ARIZ. ADMIN. CODE R4-9-108, by a preponderance of the evidence. 11. Complainant also established that Respondent continually changed employees that resulted in a departure from the original plans. Thus, Respondent violated ARIZ. REV. STAT. § 32-1154(A)(2) by a preponderance of the evidence.

6 12. Furthermore, the Registrar issued its Directive to Respondent on December 5, 2018, and required Respondent’s full compliance by January 14, 2019. Respondent failed to comply with the Directive. There are sufficient facts in the record to conclude that Respondent also violated ARIZ. REV. STAT. § 32-1154(A)(22), by a preponderance of the evidence. 13. However, there was no evidence presented that Respondent knowingly contracted beyond the scope of its license. Thus, Respondent was not in violation of ARIZ. REV. STAT. § 32-1154(A)(16). 14. Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 211961 for a period of five (5) days. IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to ARIZ. REV. STAT. § 32-1154(E). IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in ARIZ. REV. STAT. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior 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 17, 2020. /s/ Antara Nath Rivera Administrative Law Judge

7 Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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