ALJDEC decisions subject to certification as final

2019A-00956-CHC-ROC · Registrar of Contractors · 2019-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Storage At Anthem LLC.,

COMPLAINANT

CO Johnson General Contractors, Inc.,

ROC License: ROC 070504, 120568, 086064,

RESPONDENT

No. 2019A-00956-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

The Administrative Law Judge (ALJ), having reviewed documents submitted by Complainant and Respondent, as well as reviewed Honorable Lawrence Fleischman’s Arbitration Decision, finds the following:

FINDINGS OF FACT

On November 18, 1987, the Registrar of Contractors (ROC) issued License No. 070504 for General Commercial B-1 General Commercial Contractor to CO Johnson General Contractors, Inc. (Respondent). Respondent’s address of record for the license is 738 South 52nd Street, Tempe, AZ 85281-7211. Christopher Lee Johnson is listed on the license as Qualifying Party.

Administrative notice is taken of Respondent’s prior License record, for License No. 070504, as reflected on the ROC’s public website on December 9, 2019. Such prior License record reflects that Respondent’s license is currently active. 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 $90,000.00 surety bond issued through Travelers Casualty & Surety Co. effective June 7, 1991.

Furthermore, the ROC website indicated that Respondent was also issued License nos. 120568 and 086064. Both licenses were suspended.

On or about January 23, 2017, Storage at Anthem LLC (Complainant) agreed with Respondent to construct a storage facility. The project commenced on or about May 2017 and ended on or about August 2018. Complainant paid Respondent a total of $6,051,677.00. According to the Complainant, the work was not completed per the plans and the poor work resulted in flooding.

On or about February 25, 2019, the ROC received a complaint from Complainant.

On or about April 16, 2019, ROC Investigator David Fagerburg, the ROC issued a Directive From the Registrar (Directive) for completion of Complaint items 1 and 7.

On or about May 10, 2019 the ROC issued a Citation to Respondent for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

CONCLUSIONS OF LAW

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.

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.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

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.”

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.”

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.”

The ALJ finds that it was undisputed that Respondent’s work was not in conformity with the ROC’s standards. Complainant sustained damages and incurred expenses as a result of Respondent’s work. Thus, Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108.

The ALJ also finds that Respondent attempted to perform corrective work following the Directive. Not only did Respondent try to work with Complainant to fix issues prior to the Complaint, Respondent participated in arbitration following the Complainant. Respondent made reasonable efforts to perform corrective work and also entered into a tentative settlement agreement with Complainant. Respondent was not allowed to follow through with the repairs because Complainant denied access to Respondent.

Denial of access constitutes a valid justification for failing to comply with a written directive of the ROC. Therefore, Respondent cannot properly be disciplined for the violation of A.R.S. § 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. 070504 for a period of three (3) days.

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.

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-137160-45720000Done this day, December 16, 2019.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000