ALJDEC decisions subject to certification as final
2018A-556-NPC-ROC · Registrar of Contractors · 2018-05-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Cardinal Fire Protection LLC,
COMPLAINANT,
v.
Kim Heng Hour DBA: Kim's Construction,
License No's. 302780, 302781, 302779
RESPONDENT.
No. 2018A-556-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 30, 2018
APPEARANCES: Richard Anthony Vasquez for Complainant; Philip B. Whitaker, Esq. for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On August 9, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 30, 2018 at the Office of Administrative Hearings.
The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint.
Complainant Cardinal Fire Protection LLC, holds license number 268313 issued by ROC. Richard Anthony Vasquez is the qualifying party.
Respondent Kim Heng Hour DBA: Kim's Construction holds license numbers 302780, 302781, and 302779 issued by ROC.
Complainant did not file a disclosure statement as required by Ariz. Admin. Code section R4-9-118. The Notice of Hearing informs the parties of their obligation to file the disclosure and it shows that instructions and the appropriate forms were attached to that Notice.
Respondent filed a Motion to Dismiss the matter based on Complainant’s failure to make the required disclosures. During the hearing, Mr. Vasquez acknowledged that Complainant had not filed the required disclosure statement. At that time, Respondent’s Motion to Dismiss was denied, but a verbal order was issued to the effect that Complainant’s evidence would be limited to Mr. Vasquez’s testimony (i.e., no exhibits would be accepted from Complainant). In addition, the parties were informed that the Administrative Law Judge would take notice of the administrative record provided by ROC.
Respondent presented the testimony of Todd Breinholt and Mr. Hour.
Complainant asserts that Respondent owes Complainant $1703.04 for work installing a fire suppression system at a restaurant in Chandler.
On October 10, 2017, Mr. Vasquez prepared a receipt showing that Complainant received from Respondent $2100 and that there was a remaining balance of $900 owing. The parties considered this receipt to be their initial contract. The receipt/contract shows the scope of work as “complete fire system and fire system plans,” and the parties understood that this was to be a three-gallon system.
Complainant subsequently determined that a six-gallon system was required. On October 11, 2017, Complainant sent Respondent a text message showing that it would provide a “6 gallon fire system complete with install of fire system only no additional parts or services.... We will provide the drawings and plan submittal for the fire system only.” The text shows the price as $3400. Respondent replied to the text agreeing to the changed terms. Intake Complaint Submittal1.pdf at pp. 9 and 10.
Complainant began installation on October 22, 2017, at which time Complainant asserts Mr. Hour agreed to the installation of a gas valve kit.
Mr. Vasquez testified to the effect that the work was properly completed on October 23, 2017, with only the inspection remaining.
On October 25, 2017, Mr. Hour requested that Mr. Vasquez bring a micro-switch to the project. Intake Complaint Submittal1.pdf at p. 24. Mr. Vasquez testified to the effect that an electrician was going to install the micro-switch.
On October 30, 2017, Mr. Hour contacted Mr. Breinholt requesting a bid on finishing the installation at the restaurant. Complainant hired and paid Mr. Breinholt to work on the project.
Mr. Breinholt prepared plans and on October 31st he pulled a permit from the City of Chandler, because Complainant had not done so.
Mr. Vasquez acknowledged that Complainant had not pulled the permit, but was of the belief that Mr. Hour had arranged for a “deferred submittal” under which the general contractor arranges for the permit, but the permit is not issued unless the fire suppression contractor submits the required plans. Mr. Vasquez also testified to the effect that on October 31, 2017, Chandler informed him that the plans he had submitted had been withdrawn. Mr. Vasquez did not explain why the permit was not pulled when he submitted plans to Chandler.
Mr. Hour testified that his licenses do not allow him to obtain the required permit.
Mr. Breinholt testified that the job had been started, but was not complete. According to Mr. Breinholt, there was no manual pull station, there were micro-switches that had not been installed, the mechanical connector to the gas-line was not a single continuous wire as required, piping in the hood was not in the correct location, and there was not a sufficient number of nozzles.
Mr. Breinholt explained that the fire suppression contractor is supposed to install or mount the micro-switches, but an electrician must then wire these switches.
Mr. Breinholt acknowledged that he has been on jobs where an owner moved the appliances after the nozzles were set, which then required resetting of those nozzles.
Mr. Hour testified that Complainant had also run piping at the wrong elevation so the drywall for the ceiling could not be installed. It was when this piping was removed that Respondent learned that the wire to the gas-line was not one continuous piece as required.
Mr. Hour testified to the effect that he was being pressured by the project owner to finish and that Mr. Vasquez was not responsive to his requests, so he hired Mr. Breinholt to complete the project.
Mr. Vasquez did not agree that he had been unresponsive to Mr. Hour. He added that Complainant had never been informed of the alleged workmanship deficiencies, but had there been any deficiencies, Complainant would have fixed them.
Mr. Vasquez did not learn that another contractor had worked on the job until October 31, 2017, when the City of Chandler informed him that Complainant’s plans had been withdrawn.
Mr. Vasquez met with Mr. Hour on October 31st, and requested the opportunity to inspect the job, but Mr. Hour would not allow him to do so. At that time Mr. Hour requested a refund of his $2100. Mr. Vasquez was unwilling to provide a refund unless the equipment Complainant had installed was returned.
On February 5, 2018 Complainant filed with ROC its complaint against Respondent. On February 22, 2018 ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(1).
On March 5, 2018, Respondent filed an Answer to the Citation denying the allegation, and asserting that Respondent had failed to perform, failed to perform on time, and did poor work, which required Respondent to hire another contractor to complete the project. Lg Citation1.pdf.
CONCLUSIONS OF LAW
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).
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).
All parties are required to file and serve prehearing disclosures at least seven days before the hearing. Undisclosed exhibits may be excluded from use at the hearing. Ariz. Admin. Code § R4-9-118.
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).
Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” Ariz. Rev. Stat. § 32-1154(A)(10).
The contract/receipt and the text messages that comprise the parties’ contract do not address who was responsible to pull the required permit or when the job was to be completed. The parties’ contract also does not provide a detailed description of the scope of work (e.g. the number nozzles required or who was responsible to install the micro-switches) and there are no plans in evidence (nor did Complainant include plans with the complaint filed with ROC). This information is necessary to determine whether Complainant properly performed as Mr. Vasquez alleges, or whether the job was left incomplete as Respondent alleges. As such, there is insufficient evidence to show that Respondent has violated section 32-1154(A)(10) because the preponderance of the evidence does not show that Complainant was “due” $1703.04 as alleged by Complainant.
RECOMMENDED ORDER
IT IS ORDERED that that the Citation and complaint against Kim Heng Hour DBA: Kim's Construction’s license numbers 302780, 302781, and 302779 in Case No. 2018-556 are dismissed.
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 is forty days after the date of that certification.
Done this day, May 14, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors