FINACT2019A-00773-CHC-ROC.pdf

2019A-00773-CHC-ROC · Registrar of Contractors · 2019-09-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Dean P Kern, Case No. 2019-00773 COMPLAINANT, Docket No. 2019A-00773-CHC-ROC v. Job 1 LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 318679, 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. In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. MODIFICATION AND WRITTEN JUSTIFICATION 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 modifies it to provide clarification for the basis of conclusion of law number five. BACKGROUND Job 1 LLC (Respondent) is the holder of License no. 318679. ALJ Dec. 1:23-24. The Registrar issued a citation against Respondent, charging possible violations of Arizona Administrative Code Rule 4-9-108, and thereby of A.R.S. § 32-1154(A)(3), and a possible violation of A.R.S. § 32-1154(A)(22). ALJ Dec. 3:27 through 4:4. The administrative law judge concluded that Respondent established a valid justification for its failure to comply with the directive, because the Respondent was fired before its opportunity to comply with the directive. ALJ Dec. 5:17-19. The administrative law judge found that the

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 preponderance of evidence shows that Respondent did violate Arizona Administrative Code Rule 4-9-

108, and thereby of A.R.S. § 32-1154(A)(3). ALJ Dec. 5:11-13. However, the administrative law judge

declined to suspend, revoke, or otherwise discipline Respondent for the violation of A.R.S. § 32-

1154(A)(3), because the Respondent was fired before it could complete the work, and ordered the

citation be dismissed, and the matter closed. ALJ Dec. 5:21-27.

REGISTRAR’S MODIFICATION AND WRITTEN JUSTIFICATION

The Registrar modifies the Administrative Law Judge Decision to clarify why it is inappropriate

to discipline Respondent’s license despite the administrative law judge’s finding that Respondent

violated A.R.S. § 32-1154(A)(3).

The Registrar’s position on this issue is well establish. See generally Substantive Policy Statement

2017.01 “Collection of Guiding Cases & Authorities”. Specifically: A breach cannot be said to be material if it is curable, notice to cure is given, and prompt steps are taken to cure or to offer assurances of cure. The right of a breaching party to be given an opportunity to cure its own material breach is an ancient equitable principle…. Cure is relevant to materiality by virtue of its focus on elimination of the breach and its implied assurance of intent to tender adequate future performance…. Providing a cure notice of curable breaches deemed by the nonbreaching party to be sufficiently material to warrant termination for cause is a fundamental prerequisite to termination…. Unless expressly waived the right to cure is implied in every contract as a matter of law. Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor On Construction Law, § 18:15 (West Group 2002). Moreover, when a Respondent is denied access to a jobsite to correct poor workmanship, it is recommended that the Registrar dismiss the complaint in its entirety: It is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege, Therefore, it is recommended that the Registrar dismiss complaints in which access is denied. BB Ewing Property Management v. Khart Management LLC, No.2015-1168 (ALJ Dec. 15:19-25). CONCLUSION AND ORDER The Registrar, therefore, modifies the administrative law judge decision by:

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 • Inserting at the page five, line 23, the following conclusion of law number 6: “Because Respondent

committed a workmanship violation, the Registrar has the authority to discipline its license. In this

case however, no discipline is warranted because the preponderance of the evidence shows that

Respondent was denied access to the jobsite and was never given an opportunity to cure its defective

performance.”

The Registrar accepts the remainder of the Administrative Law Judge Decision, which becomes effective

on September 29, 2019.

Dated August 20, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Copy mailed via USPS First Class mail August 20, 2019 to: Respondent Job 1 LLC 716 N Williams Mesa, AZ 85203 Complainant Dean P Kern 635 W Moon Dust Trail San Tan Valley, AZ 85143

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 Randolph D. Wolfson, Administrative Law Judge

Case No. 2019-00773 / DE

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762