ALJDEC decisions subject to certification as final

2019A-01329-CHC-ROC · Registrar of Contractors · 2019-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 24, 2019 APPEARANCES: Joel and Lisa Collins on their own behalf; Nicholas James Hubbard for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On June 20, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 24, 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 The Hubb Creators LLC holds license No. 321116 issued by ROC. Nicholas James Hubbard is Respondent’s qualifying party and a member of the LLC. 4. Complainants Joel and Lisa Collins appeared and testified, and they called ROC Investigator David Fagerburg to testify. Mr. Hubbard appeared and testified for Respondent. 5. Complainants hired Respondent to perform painting work on the interior of their house, which was under construction. Complainants became dissatisfied with Respondent’s work and hired a “forensic construction consultant” to evaluate the work.

6. Through an email dated February 28, 2019, Mr. Collins informed Mr. Hubbard that their consultant was of the opinion that all surfaces in the house had to be sanded and the painting process started over. Mr. Collins informed Respondent that Mr. and Ms. Collins would follow the consultant’s advice and were providing Respondent the opportunity to “make the necessary corrections, under the auspices of our forensic consultant.” Mr. Collins questioned whether Respondent had the desire and ability to essentially re-do the entire house, and informed Mr. Hubbard that Respondent was required to respond no later than March 8, 2019. Mr. Collins added that he was of the belief that given the parties’ history it would be difficult for them to work together, but that he would leave that decision for Mr. Hubbard to make. 7. Mr. Hubbard responded to Mr. Collins through an email dated March 2, 2019. Mr. Hubbard expressed his opinion to the effect that Mr. and Ms. Collins had not provided a suitable work environment, which affected the quality of the work, and that they had caused delays in scheduling. Mr. Hubbard stated his agreement with Mr. Collins’s observation that it would be difficult for the parties to work together to finish in a timely manner because Respondent was booked well into April. 8. On March 18, 2019, Complainants filed with ROC a complaint against Respondent alleging various deficiencies in its work. In their complaint, under “Date Work Was Completed,” Complainants wrote “we stopped him due to poor workmanship and non- preparation of walls per contract.” 9. Mr. Fagerburg conducted a jobsite inspection on April 16, 2019. Mr. Hubbard had mis-calendared the time of the inspection and was not in attendance. 10. On April 30, 2019, ROC issued to Respondent a Directive that provides in pertinent part:

You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: Wall preparation – contract not followed walls not cleaned. All rooms throughout except Casita and Pantry Complaint Item 2: Interior masking – done in incorrect manner. Remove overspray on doors hardware, fixtures and floors throughout Complaint Item 3: Air sprayer usage – working incorrectly causing runs and blotchy surfaces. All rooms throughout except Casita and Pantry

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

11. 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. May 17, 2019. 12. Mr. Hubbard telephoned Mr. Collins on May 8 and 9, 2019 to schedule the work ROC ordered it to complete. Mr. Collins did not answer and Respondent left voicemail messages. Mr. Collins responded by text on May 9th and informed Respondent that Complainants were out of town, they had not read ROC’s Directive, and they would contact Respondent early the next week. Mr. Collins also asked Mr. Hubbard for a text describing what Respondent proposed to do. 13. On May 10, 2019, Mr. Hubbard texted Mr. Collins stating that there were two options, one being for Respondent to perform the corrective work as ordered by ROC, and the second being for the parties to go their separate ways with Mr. and Ms. Collins being relieved of paying the remaining balance on their contract. 14. The parties dispute whether they had further contact regarding scheduling the work ROC ordered Respondent to complete, but Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC. 15. On May 23, 2019, ROC issued to Respondent a Citation through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). 16. Mr. Collins testified to the effect that ROC had informed Complainants that it could not charge Respondent with failing to adhere to the parties’ contract. 17. Respondent filed an answer to the Citation in which Mr. Hubbard provided that Respondent was willing to comply with the Directive and in which he described his unsuccessful attempts to schedule the work with Complainants. 18. Mr. Fagerberg testified to the effect that the issues identified in the Directive were failures on the part of Respondent to meet the minimum workmanship standards. 19. Regarding Respondent’s position that Complainants had not provided access to complete the work ROC ordered it to complete, Mr. Fagerberg testified to the effect that once the deadline set in a directive has expired, the deadline cannot be extended without agreement by the complainant. 20. Regarding Complainants’ acknowledgement in their complaint that they had stopped Respondent from working based on their belief that Respondent was not in compliance with the parties’ contract, Mr. Fagerberg testified to the effect that if this was the case, ROC should not have issued a Citation. 21. Mr. Collins testified to the effect that the Collins had used a poor choice of words in their complaint and that they had not stopped Respondent from working on the project because Complainants had been willing to allow Respondent to finish the project, provided that Respondent would adhere to the requirements of Mr. and Ms. Collins’ forensic consultant in performing that work. 22. Similarly, Complainants took the position that Respondent was not denied access after ROC issued its Directive. Mr. Collins testified that he did not believe that Respondent understood the scope of the corrective work ROC was ordering Respondent to undertake and to the effect that Complainants had been amenable to allowing Respondent access to the house provided that Respondent was willing to adhere to the requirements of Mr. and Ms. Collins’ forensic consultant. 23. During the hearing, Complainants stated their willingness to allow Respondent access to make repairs, but based on Mr. Fagerberg’s opinion that ROC should not issue a citation in cases where the contractor has been denied access, Mr. Hubbard chose to let the hearing process play out. 24. Respondent raised the issues that Complainants had not provided a suitable work environment and that the work other trades may have resulted in dust on the walls between coats of paint. 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. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 9. 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: ***** 2. Departure from or disregard of plans or specifications or any building codes of this state or any political subdivision of this state in any material respect that 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 plans and specifications and code. ***** 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.

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. 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). 12. The preponderance of the evidence shows that as of the hearing date, Respondent’s work did not comply with the workmanship standards for the reasons set out in ROC’s Directive. Although Respondent asserts that these deficiencies may have been the result of poor working conditions or because another trade had affected Respondent’s work, it did not prove these assertions. The preponderance of the evidence also shows however, that before Complainants filed their complaint, the parties had a dispute regarding the terms of their contract and that the Complainants effectively denied Respondent access to finish the project, including making any necessary repairs, by conditioning any further work by Respondent on a requirement that Respondent perform any work in accordance with the requirements set forth by Complainants’ forensic consultant. Nevertheless, considering the nature of the work at issue (e.g., overspray and improperly prepared walls), the preponderance of the evidence shows that Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(3). 13. It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) because Complainants were not available to allow Respondent access to make corrections during a significant portion of the time ROC allowed Respondent to do so. In addition, although Respondent was willing to make the corrections ROC ordered, the preponderance of the evidence shows that Complainants were not amenable to allowing Respondent to make those corrections by a method of Respondent’s own choosing, but rather were only willing to allow access if Respondent would follow the dictates of Complainants’ forensic consultant when making the corrections. 14. Because Respondent has violated Ariz. Rev. Stat. section 32- 1154(A)(3), ROC has authority to discipline its license. The contractual dispute between the parties and Complainants’ related denials of access before the complaint was filed and after the Directive was issued, weigh against imposing discipline against Respondent’s license. Instead the appropriate remedy is to allow Respondent the opportunity to finish the project including making any required corrections to the existing work by a method of its own choosing. 15. Considering the above, Respondent should be directed to correct the issues set out in ROC’s Directive using the appropriate means to do so. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent be directed to correct the issues set out in ROC’s Directive within fifteen days of the effective date of the final Order in this matter. 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 8, 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