ALJDEC decisions subject to certification as final

2019A-00660-CHC-ROC · Registrar of Contractors · 2019-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2019 APPEARANCES: Alexander Elliott Kittle Jr. on his own behalf; Chad Banks for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On May 23, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 15, 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 Optum Home Solutions AZ LLC holds license No. 168402 issued by ROC. 4. Respondent conducted remodeling work in a bathroom at Complainant Alexander Elliott Kittle Jr.’s house. 5. Mr. Kittle filed with ROC a complaint against Respondent alleging a number of deficiencies. 6. ROC investigator Jim Dimond conducted a jobsite inspection on March 4, 2019. 7. On March 21, 2019, ROC issued to Respondent a Directive that required Respondent to remedy by appropriate means: Complaint Item 7: Wall panel @ window cut wrong. Trim used to hide mistakes The respondent is to correct the condition in an appropriate manner. Complaint Item 14: Cabinet molding damaged The crown is not damaged but it was reinstalled in a poor manner resulting in gaps. The respondent is to correct the condition in an appropriate manner Complaint Item 15: Trim @ window not sealed all around it The respondent is to seal the left side of the window in the shower in an appropriate manner. Complaint Item 16: Trim not installed square/flush The vertical trim at the left of the glass panel does not sit square at the shelf. The respondent is to correct the condition in an appropriate manner.

8. The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Kittle’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. on April 8, 2019. 10. Respondent had to order material to make the repairs ROC ordered it to complete and informed Mr. Dimond of that need. Respondent completed the repairs on April 23, 2019. There was no evidence adduced to show that Respondent’s failure to meet ROC’s deadline was due to any cause other than the need to obtain the required material. 11. ROC issued to Respondent a Citation dated May 7, 2019. Through that Citation ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). 12. Through its answer to ROC’s Citation, Respondent informed ROC that it had completed the repairs it had been ordered to make. On July 12, 2019, Mr. Dimond conducted a compliance jobsite inspection and determined that all work met the appropriate workmanship standards. 13. At the hearing, Mr. Dimond confirmed that Respondent had made the required repairs and that all work met the appropriate workmanship standards. 14. Chad Banks, a project manager with Respondent appeared for Respondent. Mr. Banks acknowledged that the items ROC ordered it to correct did represent minor workmanship deficiencies. 15. Mr. Kittle appeared, but presented no substantial evidence as to the issues for which ROC cited Respondent. Instead, Mr. Kittle’s main point of contention was to the effect that the shower pan was not a single molded piece with sidewalls. 16. Mr. Kittle had raised the issue regarding the shower pan in his complaint. Mr. Dimond determined that the shower floor as installed conformed to the parties’ contract and he determined that the shower meets the appropriate workmanship standards. 17. ROC did not allege in its Citation that Respondent failed to follow the contract’s plans and specifications. 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). 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. There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified or financially irresponsible. 9. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 10. 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.

11. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 12. 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). 13. Respondent acknowledged that items identified by ROC as requiring correction were workmanship deficiencies. Consequently the preponderance of the evidence shows that Respondent violated subsection 32-1154(A)(3), but the weight of the evidence shows that these were minor deficiencies. 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 by its need to order material to complete the repairs ROC ordered it to make. Consequently, it has not been shown by a preponderance of the evidence that Respondent violated subsection 32-1154(A)(22). 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 violations were minor and the preponderance of the evidence shows that Respondent completed the repairs ROC ordered it to complete. 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 2019-00660 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, August 5, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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