ALJDEC decisions subject to certification as final

2019A-02847-CHC-ROC · Registrar of Contractors · 2019-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2019 APPEARANCES: Lynne N. Perlik appeared on behalf of Complainant Able Aerospace. Kevin Liszewski appeared on behalf of Respondent K&A Best Fabrication, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On August 29, 2019, the Registrar of Contractors (Registrar) issued a notice setting the above-captioned matter for hearing on September 30, 2019, at the Office of Administrative Hearings. 2. On August 9, 2019, the Registrar issued a Citation against Respondent K & A Best Fabrication LLC (K&A) alleging that K & A violated Ariz. Rev. Stat. sections 32-1154(A)(2), 32- 1154(A)(3)(specifically, Ariz. Admin. Code section R4-9- 108) and (A)(22). 3. The Notice of Hearing provides that the issues for hearing are the charges made in the Citation and Complaint. 4. On or about February 19, 2019, Complainant Able Aerospace entered into a contract with K & A for the fabrication and installation of two steel platforms. 5. On or about June 3, 2019, the Registrar received a complainant from Able Aerospace alleging that K & A performed poor work in connection with the fabrication contract. 6. On July 18, 2019, Registrar Investigator Beau Cruz conducted a job site inspection. 7. On July 19, 2019, Investigator Cruz issued a written Directive against K & A. The July 19, 2019 Directive provides, in relevant, part as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 3, 2019.

You are hereby directed to remedy the following violations by the appropriate means:

Respondent shall complete project regarding the work station platforms, per agreements between the parties, drawing and quote provided to the Complainant(s).

8. K & A did not perform the corrective work by the deadline. 10. K & A filed a timely response to the Registrar’s May 18, 2017 Citation alleging that Able Aerospace denied access to the property. 11. A hearing was held on September 30, 2019. 12. At hearing, Mr. Liszewski explained that Ms. Perlik would not allow K & A to return to the jobsite to perform the corrective work. Mr. Liszewski provided credible testimony that another employee informed him that he would be able to make the corrections just outside of the location where the platforms would be installed. 13. Ms. Perlik testified that K &A would not abe allowed to peform the corrective work at the jobsite, but rather, K & A would have to transport the work station platforms to the jobsite after they were created. Ms. Perlik explained that K & A would not be allowed to weld at the jobsite. 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 section 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. section 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. section 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. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended as a result of their failure to comply with workmanship standards. 9. The preponderance of the evidence shows that Able Aerospace denied K & A access to its business during the timeframe for compliance under the Directive. Able Aerospace refused to allow K & A to perform corrective work at its jobsite. 10. The preponderance of the evidence does not show that K & A violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive. 11. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that K & A violated the charged provisions of Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3)(specifically, Ariz. Admin. Code section R4-9-108) and (A)(22). RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be 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, October 21, 2019.

/s/ Velva Moses-Thompson 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