FINACT2019A-00393-CHC-ROC.pdf

2019A-00393-CHC-ROC · Registrar of Contractors · 2019-07-19

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Dominique E. Bernauer, Case No. 2019-00393 COMPLAINANT, Docket No. 2019A-00393-CHC-ROC v. Antech Corporation, FINAL ADMINISTRATIVE DECISION License No. ROC 168402, 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.

REGISTRAR’S ACCEPTANCE

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 that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on August 26, 2019.

FINAL NOTE

On page 3, line 4 replace, “Mr.” with “Ms.”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated July 15, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail July 15, 2019 to: Respondent Antech Corporation 4261 S Country Club Rd Tucson, AZ 85714 Complainant Dominique E. Bernauer 16821 W Gatling Rd Marana, AZ 85653 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Case No. 2019-00393/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 6.27.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dominique E. Bernauer, No. 2019A-00393-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Antech Corporation, DECISION License No. ROC 168402, RESPONDENT

HEARING: June 7, 2019 APPEARANCES: Dominique E. Bernauer on own behalf; Neal A. Eckel, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On May 2, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on June 7, 2019 at the Office of Administrative Hearing. 2. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint. 3. Respondent Antech Corporation holds license No. 168402 issued by ROC. 4. Respondent conducted work at Complainant Dominique Bernauer’s house. 5. Ms. Bernauer filed with ROC a complaint against Respondent alleging a number of workmanship deficiencies. 6. ROC investigator Gregory Johndrow conducted a jobsite inspection on February 15, 2019. 7. On March 4, 2019, ROC issued to Respondent a DIRECTIVE that required Respondent to remedy by appropriate means: Complaint Item 5: "front door catches on shed wall when humid." Complaint Item 10: "replaced paneling warps when humid' now permanent. Inferior product." Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 6.27.2019 ROC LEGAL

8. The DIRECTIVE shows that ROC had determined that any other workmanship violations alleged in Ms. Bernauer’s complaint were unsubstantiated. 9. The DIRECTIVE required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. March 25, 2019. 10. Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC. 11. ROC issued to Respondent a CITATION dated April 2, 2019. Through that CITATION ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (A)(22). 12. Respondent acknowledges that it did not complete the work ROC ordered it to remedy in the time ROC allowed, but provided credible evidence to the effect that ittook two to three weeks to locate and obtain the replacement paneling. In addition, although the parties agree that Ms. Bernauer did allow Respondent access to continue making repairs after ROC’s deadline, they also agree that there were scheduling issues occasioned by both parties’ availability. Moreover, Ms. Bernauer acknowledged that the only one of Respondent’s employees that she was allowing to make the required repairs was Thom Defilippis. 13. Mr. Defilippis provided credible testimony that the work remaining to be completed at Ms. Bernauer’s house was minor and could be completed in a few hours. This work included sanding down the door jamb, installing about one and a half panels, applying trim and cover plates, puttying nail holes, and cleaning up liquid nail smudges.

14. At the hearing, Mr. Johndrow testified to the effect that the DIRECTIVE had

provided Respondent with sufficient time to do the work it was ordered to do and that

he had allowed Respondent an additional week to complete that work. But Mr.

Johndrow did not address the fact that Respondent had to special order the paneling,

nor did he specifically address the fact that the parties were experiencing scheduling

issues and that Ms. Bernauer was allowing only Mr. Defilippis to do the required work.

RECEIVED 6.27.2019 ROC LEGAL

15. At the hearing, Respondent provided that it was ready, willing and able to finish the repairs that ROC had ordered it to make. Ms. Bernauer however is unwilling to allow Respondent back to her house to finish those repairs.

16. Mr. Bernauer testified that she had made attempts to repair the front door,

including banging on it with a hammer.

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).

RECEIVED 6.27.2019 ROC LEGAL

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. The Administrative Law Judge may consider ROC’s administrative record.

See ARIZ. ADMIN. CODE § R4-9-118.

9. 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.

10. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 12. It has not been shown by a preponderance of the evidence that the warped panels were the result of Respondent’s failure to perform in a professional and workmanlike manner. To the contrary, Ms. Bernauer’s complaint and ROC’s DIRECTIVE show that the warping was because the paneling was an inferior product.1

Which is not to suggest that Respondent had no responsibility to provide a product meeting the specifications of the parties’ contract. That contract is not however in evidence. RECEIVED 6.27.2019 ROC LEGAL

13. Regarding the front door catching on the shed, Respondent did not dispute that this was a workmanship violation, but the evidence shows that it is a minor issue that can be repaired quickly.

14. Although Respondent did not comply with ROC’s DIRECTIVE within the time

ordered, it has shown that its failure to do so was justified and not a violation of

subsection (A)(22). This conclusion follows from the facts that Respondent had to order

the replacement paneling, which took several weeks, and that the parties acknowledge

that there were scheduling issues on both sides, which may have been exacerbated by

Ms. Bernauer’s requirement that all repairs be made by Mr. Defilippis.

15. Because Respondent has committed a workmanship violation, ROC has

authority to discipline its license. In this case however, no discipline is warranted

because the proven violation is minor and the preponderance of the evidence shows

that Respondent could complete the repairs ROC ordered it to complete in a few hours,

but Ms. Bernauer is unwilling to allow it access to do so.

16. Consequently, this matter should be dismissed.

RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final ORDER in this matter case number 2019-00393 is 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, June 26, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors