ALJDEC decisions subject to certification as final

2019A-00657-CHC-ROC · Registrar of Contractors · 2019-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2019 at 9:00 AM and October 08, 2019 at 9:00 AM.[1] APPEARANCES: Fred Thomas, Esq., appeared on behalf of Anthony Frasier (“Complainant”) with Charity Frasier as a witness. Andrew Wenker, Esq. and Jason Clark, Esq. appeared on behalf of David Duane Doty (“Respondent”), doing business as West Valley Kitchen and Bath, with Kim Doty, Bryce Doty, and Respondent as witnesses. Brittany Wilcox observed. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT Background and Procedure 1. Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website as of October 08, 2019. According to the Registrar’s public website, the ROC issued License No. 265213 for Specialty Dual CR-61 Carpentry, Remodeling and Repairs contracting to Respondent on July 22, 2010.[2] License No. 265213 is current and renewed through July 31, 2020. David Duane Doty is listed as the Qualifying Party/Owner on the license. Respondent’s address of record on the license is 19509 N Sunrise Blvd. Ste. 3 Surprise, AZ 85374-4827. The license has a $6,750.00 surety bond through RLI Insurance Company effective February 05, 2014. There is one open complaint against the license, which is presumed to be Complainant’s. No other disciplinary action is listed on the license. 2. According to the Complaint, on or about August 16, 2018, Complainant and Respondent entered into a contract agreement whereby Respondent agreed to complete a residential kitchen remodel, located at 17811 W Westpark Blvd. Surprise, AZ 85388, for the sum total of $30,224.09. On August 22, 2018, Complainant issued check number 1005 to Respondent for $26,064.00. Work on the project started September 10, 2018. On October 04, 2018, Complainant issued check number 1007 to Respondent for $8,599.00. Work on the projected ceased January 18, 2019. 3. On February 08, 2019, the Registrar received a complaint from Complainant alleging abandonment and poor workmanship.[3] 4. On February 14, 2019, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by a Registrar investigator on March 20, 2019, at 11:00 a.m.[4] Complainant was further advised that under the law Respondent was permitted to inspect the work complained of, and that refusing to grant Respondent access could result in the complaint being dismissed. Respondent was further advised that to have any building permit(s) required for the project on site during the inspection. 5. On March 20, 2019, Registrar investigator Randy Morris (“Investigator Morris”) conducted a review of the contract executed between the parties, and also inspected the work that had been done on the project to date. Additionally, Investigator Morris took seventeen photographs of the property.[5] When he was finished, Investigator Morris drafted inspection notes.[6] 6. On April 05, 2019, Investigator Morris issued a Directive from the Registrar to Respondent because he substantiated Complainant’s allegation that Respondent had not completed the project, and that the work Respondent had done on the project failed to meet minimum workmanship standards.[7] Of the eleven action items originally levied against Respondent by Complainant, three of them were substantiated by Investigator Morris. Investigator Morris also added another action item to the complaint. Respondent was put on notice that he had until 5:00 p.m. on April 24, 2019, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4- 9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).[8] 7. On April 05, 2019, Investigator Morris issued a Warning Letter to Respondent to advise that building permit(s) were not obtained for the project in violation of the International Residential Code and the International Building Code.[9] Respondent was further advised that failure to comply with the building codes was a violation of Ariz. Rev. Stat. § 32-1154(A)(2), which could result in discipline against Respondent’s license including suspension or revocation.[10] 8. On April 05, 2019, Investigator Morris issued a Warning Letter to Respondent to advise that its contract with Complainant did not meet statutory minimum elements in violation of Ariz. Rev. Stat. § 32- 1158(A).[11] Respondent was further advised that failure to comply with Ariz. Rev. Stat. § 32-1158(A) was a violation of Ariz. Rev. Stat. § 32-1154(A)(12), which could result in discipline against Respondent’s license including suspension or revocation.[12] 9. On April 18, 2019, Investigator Morris issued an Amended Directive from the Registrar to Respondent because he removed Complainant Item 2 from the Directive.[13] Respondent was put on notice that it had until 5:00 p.m. on May 07, 2019, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4- 9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).[14] 10. On May 24, 2019, the Registrar issued a Citation and Complaint to Respondent under Ariz. Rev. Stat. § 32-1155(A).[15] Respondent was given until June 10, 2019, to respond with his Answer.[16] 11. On June 10, 2019, the Registrar received Respondent’s Answer whereby Respondent asserted that all work performed on the underlying project had been done in a “professional and workmanlike manner,” and might have been subject to “neglect, modification or abnormal use” per “Ariz. Rev. Stat. § 32-1155(C)(2).”[17] 12. On June 12, 2019, the Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 26, 2019. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges: Charge 1: A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”) Charge 2: A violation of A.R.S. § 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 plan and specifications and code.”) Charge 3: 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). Charge 4: A violation of A.R.S. § 32-1154(A)(8) (“Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”) Charge 5: A violation of A.R.S. § 32-1154(A)(12) (“Failure in any material respect to comply with this chapter.”) Namely, a violation of A.R.S. § 32-1158(A) (“Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.”). Charge 6: 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.”).[18] Hearing Evidence 13. Complainant called Charity Frasier as a witness and submitted 6 exhibits. Respondent called Kim Doty, Bryce Doty, and David Doty as witnesses and submitted 23 exhibits. The Registrar’s electronic hearing file, including an audio clip dated March 20, 2019, and Notice of Hearing were also admitted into the evidentiary record as their own exhibits. Investigator Morris’ testimony 14. In Respondent’s March 15, 2019, Answer to the Complaint, Respondent alleged that Complainant had made “constant threats” to Respondent which left Respondent unwilling to return to the project site.[19] Respondent also provided notice that it would not attend the jobsite inspection. 15. The jobsite inspection took place on March 20, 2019. Respondent was not present. 16. No building permits were on site the date of the inspection. 17. After the issuance of the Directive Respondent asked for an extension of the compliance deadline. Cecause Complainant did not agree the extension was not granted by the Registrar. 18. Because an Amended Directive was later issued, however, Respondent’s compliance deadline was pushed back to May 07, 2019. 19. On May 03, 2019, Respondent submitted a building inspection request to the City of Surprise (“City”). 20. On May 07, 2019, the City completed its inspection of the project. Neither the plans nor Respondent were present onsite for the City’s inspection. The project failed the inspection.[20] 21. On May 23, 2019, the Complaint was escalated to the Registrar’s legal department, sixteen days after the expiration of the Amended Directive’s compliance deadline.[21] Charity Frasier’s testimony 22. When Complainant first met with Respondent to discuss her kitchen remodel project, Respondent told Complainant that he would “only pull necessary permits,” so Complainant never requested any prior to the start of the project. 23. Communication between Complainant and Respondent began to breakdown shortly after the project started. Respondent would inconsistently appear on the jobsite with trades, and would only provide notice of his intent to work the evening prior to showing up on the jobsite. 24. In mid-January 2019, Complainant issued a punch list to Respondent and the parties participated in a walkthrough of the project.[22] 25. On January 21, 2019, Respondent asked Complainant to select a date to address pending punch list items and any outstanding action items.[23] Respondent also provided Complainant with a final invoice for the project and asked for payment to be tendered on the date Complainant selected to finalize the project. 26. On January 28, 2019, Complainant asked for an itemized invoice.[24] This resulted in the parties’ relationship turning hostile. Complainant levied multiple accusations against Respondent, including accusing Respondent of charging Complainant for mistakes and damage Respondent caused, failing to remediate issues Respondent previously agreed to address, and for engaging in deceptive business practices. Complainant asked Respondent for a revised invoice, and declared that he did “not want [Respondent] in my home again.” 27. During an exchange on January 31, 2019, Complainant wrote to Respondent, in part, “The full reason that we hired you is because I cannot do this work anymore. There is work here that had to be undone and redone. My physical and cognitive endurance prevents me from ‘buckling down’ and fixing it or even doing the research to hire others. This was not one job to us, but the start of the majority of our home. At this point I think you should count your ‘blessings’ and just walk away with what you have and be grateful we’re not vindictive people. And the fact of them matter is I don’t want to fight. I want to move on and start developing a plan to get this fixed because I should have never been forced to live this way.”[25] 28. During the City’s inspection of the project, the inspector requested rough end photographs. Complainant was unable to provide them because they were in Respondent’s possession, and Respondent was not present for the inspection. 29. Although Respondent sent Complainant a final invoice for the project, Complainant did not issue payment because Respondent had not completed work on the project. David Doty’s testimony 30. Respondent did not believe a permit was necessary for the underlying project, so he did not initially request one from the City. 31. The project was severely delayed due to things outside of Respondent’s control, such as the kitchen countertop and microwave box being cut incorrectly. 32. No written Change Orders were executed for this project, though Complainant incurred $2,000.00 as a result of “verbal” agreements. 33. In mid-December 2018, Respondent received a punch list from Complainant. A revised punch list was received from Complainant on January 14, 2019. 34. On January 17, 2019, the parties performed a walkthrough of the project. 35. On January 21, 2019, Respondent sent Complainant a final invoice for $3,642.58.[26] 36. The parties engaged in several email exchanges after Respondent received Complainant’s January 28, 2019, request for an itemized invoice. When Respondent received Complainant’s January 30, 2019, email, Respondent thought he had been fired from the project. 37. Respondent never contacted local law enforcement regarding any incident or communication with Complainant. Complainant never threatened bodily harm against Respondent or any of his trades. 38. On April 23, 2019, Respondent submitted a permit request to the City.[27] The permit was issued on April 26, 2019.[28] 39. The permit did not pass the City’s inspection on May 07, 2019. Respondent did not schedule a second inspection. Bryce Doty’s testimony 40. In January 2019, Complainant became combative on the jobsite. By the end of the project Complainant was yelling at Respondent’s trades on a daily basis. 41. It only took Respondent one day to address all designated items on the January 14, 2019, punch list. 42. Complainant confirmed in a text message that he modified Respondent’s work in three separate areas of the project. Investigator Morris’ jobsite inspection photographs show the work that Complainant modified. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction and has been properly brought before the Office of Administrative Hearings for adjudication.[29] 2. The Registrar 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.[30] 3. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[31] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[32] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[33] A preponderance of the evidence is “[t]he 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.”[34] 5. Ariz. Admin. Code R4-9-108 requires that “a contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.” 6. Ariz. Admin. Code R4-9-108 requires that “a contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.” 7. Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” 8. 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.” 9. Ariz. Rev. Stat. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.” 10. Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” 11. 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. 12. Ariz. Rev. Stat. § 32-1158(A) holds that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: (1) The name of the contractor and the contractor's business address and license number; (2) The name and mailing address of the owner and the jobsite address or legal description; (3) The date the parties entered into the contract; (4) The estimated date of completion of all work to be performed under the contract; (5) A description of the work to be performed under the contract. (6) The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes; (7) The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner; (8) The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract; and (9) That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. 13. Here, the record is clear. 14. Complainant has not established a violation of Ariz. Rev. Stat. § 32- 1154(A)(1) by a preponderance of the evidence. By the date the underlying complaint was filed, Respondent had materially performed on the contract. The only items that remained, if any, were non- substantive punch list items. The record reflects that the parties were actively trying to settle their dispute after the underlying complaint was filed, which directly refutes Complainant’s allegation of abandonment. 15. Complainant has established a violation of Ariz. Rev. Stat. § 32- 1154(A)(2) by a preponderance of the evidence. Respondent failed to ensure that a permit was obtained prior to commencing work on the project, and further failed to obtain a permit after the work started.

16. Complainant has established a violation of Ariz. Rev. Stat. § 32- 1154(A)(3), and thereby Ariz. Admin. Code R4-9-108, by a preponderance of the evidence. Respondent argued that it followed the plans that were approved by the City, yet the work it performed on the project did not pass the City’s inspection. 17. Complainant has established a violation of Ariz. Rev. Stat. § 32- 1154(A)(8), as Respondent conceded that no written Change Orders were executed for the project yet Complainant was charged $2,000.00 for changes outside the original contract signed by the parties. 18. Respondent concedes to violating Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158(A). 19. Respondent also concedes to violating Ariz. Rev. Stat. § 32- 1154(A)(22) as mandatory remediations were not complete by the expiration of the Registrar’s Amended Directive compliance deadline. 20. Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Amended Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. 21. Here, Respondent raised two defenses. 22. First, Respondent argued that he believed he was fired by Complainant on January 30, 2019. Second, Respondent argued that he did not want to return to the jobsite because was fearful of Complainant. 23. Neither argument is credible. 24. The record clearly establishes that Respondent continued working towards the completion and/or settlement of the project after January 30, 2019. The record is also devoid of evidence that would substantiate Respondent’s allegation that he was fearful of Complainant despite his admission that Complainant never threatened him with physical violence or attacked him. Additionally, Respondent presented no evidence to substantiate his claim that Complainant tampered or otherwise modified any of his work on the project. 25. Based on the foregoing, Respondent has not provided satisfactory mitigating evidence sufficient to overcome or rebut the credible evidence provided by Complainant in this matter. 26. Because Complainant established that Respondent failed to comply with the Registrar’s Amended Directive by a preponderance of the evidence, Complainant has also established cause for the Registrar to suspend or revoke Respondent’s contractor’s license under Ariz. Rev. Stat. §§ 32- 1154(A)(2), 32-1154(A)(3), 32-1154(A)(8), 32-1154(A)(12); 32-1158(A), 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. 27. 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 five days after the effective date of the Final Order in this matter, Respondent David Duane Doty, dba West Valley Kitchen and Bath, ROC License No 265213, be suspended for five (5) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(2), 32- 1154(A)(3), 32-1154(A)(8), 32-1154(A)(12); 32-1158(A), 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. 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, November 18, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The record in this matter was held open until Tuesday, October 29, 2019, for the receipt of written closing arguments, which were timely received by the Office of Administrative Hearings. [2] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACHiwEAH. [3] See the Registrar’s electronic file, pages 85-102. [4] See the Registrar’s electronic file, pages 66-68. [5] See the Registrar’s electronic file, pages 48-64. [6] See the Registrar’s electronic file, pages 45-47. [7] See the Registrar’s electronic file, pages 37-39. [8] Id. [9] See the Registrar’s electronic file, pages 42-44. [10] Id. [11] See the Registrar’s electronic file, pages 40-41. [12] Id. [13] See the Registrar’s electronic file, pages 26-27. [14] Id. [15] See the Registrar’s electronic file, pages 6-12. [16] Id. [17] See the Registrar’s electronic file, pages 134-135. [18] See the Registrar’s electronic file, pages 6-12. [19] See Respondent Exhibit 2. [20] See the Registrar’s electronic file, pages 21-22. [21] See the Registrar’s electronic file at page 15; see also Respondent Exhibit 5. [22] See Respondent Exhibit 22. [23] See Respondent Exhibit 10. [24] Id. [25] Id. [26] See Respondent Exhibit 1. [27] See Complainant Exhibit 3. [28] See Respondent Exhibit 11. [29] See Ariz. Rev. Stat. §§ 32-1101 et seq., 32-1154(A), and 41-1092 et seq. [30] 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). [31] Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [32] See Ariz. Admin. Code R2-19-119(B)(2). [33] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [34] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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