ALJDEC decisions subject to certification as final
2018A-59-CHC-ROC · Registrar of Contractors · 2018-05-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kip Hapner,
COMPLAINANT,
v.
JGL Consulting LLC,
License No: 274797
RESPONDENT.
No. 2018A-59-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 21, 2018
APPEARANCES: Kip Hapner, Complainant; Elaine Hapner, Complainant witness; Jack Grimm, Registrar of Contractors Inspector.
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, JGL Consulting LLC [hereinafter “JGL”] for poor and below standard workmanship, failure to follow plans and specifications and abandonment of a contracted construction project.
At the time of the contract entered into by the parties hereto, Jim Gordon Leonard was the Qualifying Party for the license issued by the Registrar numbered 274797. On December 17, 2017, the license of JGL was Administratively Suspended for lack of a Qualifying Party. JGL’s license number 274797 was suspended after work commenced on this project. JGL’s license number 274797 is currently suspended.
On March 29, 2018, the Registrar issued a Notice of hearing setting a hearing at 8:30 am on May 21, 2018. The Registrar mailed copies of the Notice of Hearing [hereinafter the “NOH”] to the Respondent at its address of record. The receipt by JGL of the NOH at the address noted in the Certificate of Service is established inasmuch as JGL filed an Answer to the Citation which was mailed to the same address as is listed with the Registrar for JGL.
A hearing was conducted on May 21, 2018.
The NOH informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” JGL did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, JGL did not appear through an authorized member, employee or attorney. Consequently, Respondent did not present any evidence to defend its license.
Registrar Investigator Jack Grimm testified under oath that he received the Complaint and thereafter a site inspection was conducted January 26, 2018 in follow-up to the Complaint, Notice of the inspection was provided to the Respondent at its address of record. Jim Gordon Leonard of JGL and the Complainant appeared for the site inspection.
The Registrar issued a Corrective Work Order [CWO] to JGL on January 29, 2018 as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Complete Patio Cover and all contracted items per contract.
Replace effected [sic] area of concrete with crack 3/32 inch or larger.
In the CWO, JGL was given until 5:00 p.m. on Februrary15, 2018 to demonstrate compliance with the CWO. The Registrar having not received a notice of compliance from the Respondent, Inspector Grimm spoke to the Complainant on January 16, 2018: Mr. Grimm was informed that no repair had been attempted and that there had been no compliance from JGL on the CWO.
On February 21, 2018, the Registrar issued its citation against the Respondent charging two alleged violations:
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)
The Answer admits the citation was received by the Respondent at its address of record.
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CONCLUSIONS OF LAW
The Registrar of Contractors has jurisdiction over Complaint No. 2018A-59-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). Although JGL Consulting LLC license is Administratively Suspended, JGL Consulting LLC is a licensee under A.R.S. § 32-1101, et seq.
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.
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).
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.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The copies of CWO and the Notice of Hearing that the Registrar mailed to the Respondent at its address of record and at the address on its written answer were reasonable and legally sufficient. Respondent is deemed to have received notice of the hearing. [See, A.R.S. §41-1092.04 and §41-1092.05(D)].
By its failure to appear, Respondent has defaulted. Inasmuch as by its default Respondent has presented virtually no evidence to defend its license, Respondent has failed to meet its burden of proof.
Respondent did violate A.R.S 32-1154(A)(23) by failing to comply with the CWO, within a reasonable amount of time without valid justification.
Respondent did 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 involved repair of a large crack in the cement pad poured by a sub-contractor of JGL and a failure to complete the scope of work contracted including the Patio and Patio Cover required in the contract.
That the Respondent did ignore the effort of the Registrar to address the concerns of the Complainant in that JGL failed to appear at the hearing in this case - is an aggravating circumstance.
JGL Consulting LLC, License No: 274797, should, under the facts presented in this case, be revoked.
Pursuant to A.R.S. §32-1154(D), the Registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A.R.S. §32-1154(A)(23). By its failure to comply with the Registrar’s January 29, 2018 CWO, the Registrar should impose a civil penalty of $500.00.
RECOMMENDED ORDER
IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter the license of JGL Consulting LLC, License No: 274797
is revoked.
FURTHER IT IS RECOMMENDED it be Ordered that in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $500.00 is imposed against JGL Consulting LLC, License No: 274797.
Done this day, May 21, 2018.
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Kip Hapner,
4427 W Kaler Cir
Phone: (623) 523-2141
Glendale AZ 85301-1637
Complainant
JGL Consulting LLC
16165 N 83rd Ave Ste 200
Peoria AZ 85382-5816
Respondent
Jeffrey Fleetham, Director
Registrar of Contractors
By: ________