ALJDEC decisions subject to certification as final

2019A-00569-CHC-ROC · Registrar of Contractors · 2019-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2019 at 8:30 a.m. APPEARANCES: Priscilla Laspreses (“Complainant”) appeared on her own behalf. Nathan Brown appeared on behalf of Heritage Crown and Millworks LLC (“Respondent”). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera. _____________________________________________________________________ FINDINGS OF FACT 1. On September 11, 2010, the Registrar of Contractors (“ROC”) issued License No. 269282 for Specialty Dual CR-60 Finish Carpentry to Respondent. Respondent’s address of record for the license is 18832 East Seagull Drive, Queen Creek, AZ 85142-5312. Matthew Price Scott is listed on the license as Qualifying Party and Member.[1] 2. Pursuant to A.A.C. R4-9-17, administrative Notice is taken of Respondent’s prior License record, for License No. 269282, as reflected on the ROC’s public website on September 26, 2019. Such prior License record reflects that Respondent’s license is currently active. The license has never been disciplined by the ROC. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through RLI Insurance Company effective December 27, 2018.[2] 3. On or about October 31, 2018, Complainant entered into a verbal contract agreement whereby Nathan Brown, representative of Respondent, agreed to do a renovation at a residential home located at 3520 West Caribbean Lane, Phoenix, AZ 85053 for the sum total of $2,006.40. The project commenced on October 31, 2018, and stopped on November 23, 2018. Complainant did not pay Respondent for any of the performed work. 4. On or about February 4, 2019, the ROC received an abandonment complaint. 5. On an unspecified date, the ROC issued a Jobsite Inspection Notification letter to the parties, providing proper notice to them, and advising them that an onsite review would be conducted at the project site by an ROC investigator on March 7, 2019. 6. On March 7, 2019, ROC investigator Chris Fultz (“Investigator Fultz”) conducted an inspection of the work that had been done on the project to date and took 12 photographs of the property. 7. On or about March 18, 2019, Investigator Fultz issued a Directive From The Registrar (“Directive”) to the parties because he substantiated Complainant’s allegation that Respondent abandoned the project. Specifically, Respondent was ordered to remediate complaint items 2, 3, 4, and 6 via appropriate means. The compliance deadline for the Directive was April 5, 2019. 8. Prior to the compliance deadline, Respondent fixed all items listed on the Directive. However, Complainant was not happy with item 6 and complained to Investigator Fultz’s supervisor at the ROC. 9. On or about April 29, 2019, a second Directive was issued by Investigator Fultz because he substantiated Complainant’s allegation that Respondent performed poor workmanship in accordance with professional industry standards. The compliance deadline was May 15, 2019. Respondent failed to comply with the second Directive. 10. On or about June 4, 2019, the ROC issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32- 1154(A)(22), and Ariz. Admin. Code R4-9-108. Respondent was given until June 19, 2019, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Respondent did not file an Answer. 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 September 26, 2019. 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 A.R.S. § 32-1154(A)(3)-R4-9-108. (“Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108.”). Charge 2: A violation of A.R.S. § 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.”). HEARING EVIDENCE 13. Mr. Brown completed all corrective work indicated on the first Directive. Due to Complainant’s dissatisfaction, she contacted Investigator Fultz’s supervisor. Investigator Fultz’s supervisor inspected Mr. Brown’s work and determined that the closet door was not installed per industry standards. 14. During the jobsite inspection, Complainant wanted the owner of Respondent, Matthew Price to be on the property and participate in the inspection due to a prior conflict with Mr. Brown. Thus, Mr. Brown was not present for the inspection. 15. Prior to the complaint being filed, Complainant believed Mr. Brown to be an employee of Respondent. Investigator Fultz believed Mr. Brown to be the owner of Respondent based on Mr. Brown’s statements to Investigator Fultz. 16. Complainant testified that, at all times relevant, she was the owner of 3520 West Caribbean Lane, Phoenix, AZ 85053. Complainant had a verbal agreement with Mr. Brown to perform a renovation in her home. Complainant had contact with Mr. Brown through the duration of the project. Complainant and her husband, Adewale Kumuyi dealt with Mr. Brown. Mr. Brown and his crew began the project later than expected. Mr. Brown abandoned the project when he refused to complete the installation of doors, baseboards, and casing and refused to finish painting. 17. Mr. Brown represented that he was partners with Mr. Price and that it was legal for him to work, under the umbrella of Respondent, while he was in the process of obtaining a license for his company, Heritage Crown and Millworks Colonial Crown and Trim, LLC. The evidence showed that Mr. Brown represented himself as owner of Heritage Crown and Millworks Colonial Crown and Trim, LLC, not Respondent, in an email he authored.[3] 18. Mr. Brown complied with the first Directive but did not comply with the second Directive. Both Directives were sent to the same address of Respondent: 3957 East Scorpio Place, Chandler, AZ 85249. While Mr. Brown received the first Directive he did not receive the second Directive. He found out about the second Directive when he received an email from Respondent’s office manager. After receipt of that email, Mr. Brown did not contact Complainant or complete the corrective work issued under the second Directive. 19. Throughout the project Complainant micromanaged Mr. Brown and informed Mr. Brown how to do his job based on what Complainant’s father told her. On or about October 31, 2018, a disagreement occurred between Complainant and Mr. Brown whereby Mr. Brown left the premises after Complainant informed him that his work was done. Complainant did not pay Mr. Brown for any work completed. CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq. 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.[4] 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.[5] 4. 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); A.A.C. R2-19-119(A) and A.A.C. 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). 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.” 7. 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 ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.” 8. Complainant established, by a preponderance of the evidence, that she believed Mr. Brown to be an agent of Respondent after Mr. Brown represented himself as such. Complaint entered into a verbal contract with Mr. Brown and communicated with Mr. Brown throughout the entire project. 9. Complainant also established that Mr. Brown failed to correct the door casing in compliance with the second Directive within the deadline. Complainant hired another contractor to fix that issue. Thus, as an agent of Respondent, Mr. Brown did not did not complete the project in a workmanlike manner, after the first Directive and did not comply with the second Directive, even after getting a second bite at the apple. Thus, Respondent was in violation of Ariz. Rev. Stat. § 32- 1154(A)(3), namely A.A.C R4-9-108. 10. While there was evidence that Complainant told Mr. Brown to leave the property because of a disagreement and because Complainant believed his job was done, as of October 2018, Mr. Brown did not attempt to contact Complainant after April 29, 2019, to comply with the second Directive. While denial of access constitutes a valid justification for failing to comply with a written directive of the ROC, in this case, Respondent failed to establish, by a preponderance of the evidence, that Complainant denied it access to the property after the second Directive was issued. Mr. Brown admitted that he did not correct the work following the second Directive, even after receipt of the email from Respondent’s office manager. Thus, Respondent failed to comply with the second Directive and was in violation of Ariz. Rev. Stat. § 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 Respondent’s License No. 269282 for a period of three (3) days. IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum of $500.00, in certified funds, as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), 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, October 16, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACK4SEAX. [2] Id. [3] See ROC Hearing packet, Yahoo Mail-Re: Heritage bid, page 4/6. [4] See Ariz. Rev. Stat. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). [5] See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826