ALJDEC decisions subject to certification as final
2019A-03612-CHC-ROC · Registrar of Contractors · 2020-05-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mark Edwin Breazeale,
COMPLAINANT
v.
N & L Investment Corporation,
ROC License: ROC 059892, 068985,
RESPONDENT
No. 2019A-03612-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 21, 2020 and April 22, 2020.
APPEARANCES: Complainant Mark Breazeale appeared at the first (video) hearing session but failed to appear at the second (telephonic) hearing session. Respondent N&L Investment Corporation dba Pitzer’s One Hour Heating and Air Conditioning appeared through its owner Larry Thornton at both hearing sessions.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License Nos. 059892 and 068985 issued by the Arizona Registrar of Contractors (Registrar).
Under a verbal contract, Respondent was to replace an evaporative cooling system with a heat pump system; the project was to include duct work, two supply runs and a new thermostat. The work appears to have been arranged initially through Home Depot and was to have been completed by June 28, 2019.
Following the installation and Complainant’s dissatisfaction with the materials and workmanship, the Registrar received Complainant’s Complaint containing a narrative of concerns and complaints.
The Registrar requested and, on July 23, 2019, received from Complainant some additional information to supplement the Complaint.
A monsoon came through the area between the filing of the Complaint and the job site inspection. Respondent was informed that water had leaked through a roof penetration, and Respondent agreed to pay for repairs (roof and drywall).
The drywall work was to be done by a third-party contractor [JDS Improvements (JDS)], as that remaining work was outside the scope of Respondent’s license; Respondent agreed to pay the cost of such repairs. There were delays in the third-party contractor being available to perform the repairs; Complainant had agreed to have that contractor perform the work.
On August 6, 2019 at a jobsite inspection, the Registrar’s Investigator, Jim Dimond, determined that, although the duct work issue (patched instead of new) had been remedied, that the drywall patching/repairs had not yet been completed as had been agreed to by Respondent. No other issues were determined to be sustainable as violations.
The Investigator issued a Directive dated September 5, 2019 to Respondent regarding the sole workmanship issue [drywall repairs] and reminded Respondent that they may not perform work, or hire another contractor to perform work, that was outside the scope of its license. The deadline for completion of the directive work was September 23, 2019.
On September 24, 2019, Complainant notified Respondent of a roof leak at a bathroom light fixture.
On September 25, 2019, Respondent made repairs to the roofing area.
On October 12, 2019, Complainant emailed the Investigator that the [drywall] work was not yet done, and that JDS was waiting for Respondent to approve the JDS bid for the repairs. Complainant indicated that JDS had informed them that they were booked with work “until December 4” but that JDS would “fit us in” after hours to see that Complainant was “taken care of in a timely manner.”
The Registrar issued a Citation on October 31, 2019, charging Respondent with possible violations of: ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).
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 Section 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) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”
On November 14, 2019, Respondent filed its written Answer to the Citation, noting that the remaining work was not part of the Complaint, but arose through rain damage that Respondent did agree to remedy. Respondent protested the Citation because there was nothing more that Respondent could do but await the third-party JDS to make the drywall repairs.
The Registrar noticed the matter for hearing.
At the January 21, 2020 hearing, it was discovered that a pre-hearing jobsite inspection had not been conducted due to other job responsibilities of the Investigator.
At the hearing, Complainant alleged that the roof sealing work at one place (that had leaked) was a “poor patch job”, was improperly done, and that other roofers had so advised him. Complainant argued that the roofing work might fail in that area. While Complainant agreed that there had been no further leaks or damage from that area, he wanted to have the repairs inspected.
At the hearing, Respondent maintained that all the repairs were done. Respondent maintained that the particular roof repair “may not be the prettiest” but that the flashing had been installed under the shingles and that it was a proper repair with roofing tar over that area.
The matter was held open for, essentially, a compliance inspection by the Investigator. On March 6, 2020, the Investigator notified the Tribunal and the parties regarding two inspections, one on January 31, 2020 and one on February 25, 2020. He indicated as follows, in pertinent part:
At that inspection, it was determined that indeed, the flange of the roof jack for the HVAC unit was improperly placed on top of the shingles at the roof ridge side of the jack.
The respondent indicated that they would immediately correct the issue. An attempt was made the next week however, inclement weather prevented it on the scheduled day.
The respondent then came out and corrected the issue.
The complainant is concerned that the installation does not meet standards.
On February 25th, 2020, I conducted another inspection and I have [determined] that the upslope flange of the jack has been placed properly under the shingles.
The complainant is also concerned about the methods used to secure the jack to the roof. He is concerned that the unit will slide downhill.
On March 9, 2020, Complainant notified the Investigator that he disagreed with the inspection determinations and that he was going to talk to the Investigator’s supervisor.
On March 9, 2020, Respondent requested that the matter be closed as the repairs met minimum standards and that there was nothing else for Respondent to do at Complainant’s home.
By Tribunal ORDER dated March 27, 2020, the matter was reset for telephonic hearing in order to proceed with Complainant’s appeal, if that was his intent.
Despite notice of the telephonic hearing, Complainant failed to appear by failing to provide any contact number at which he could be reached at the scheduled time and he also failed to call in for the hearing.
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only open complaint regarding this particular license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
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.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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 or revoked as a result of a failure to comply with workmanship standards.
9. The hearing record demonstrated that the only remaining issue in the Directive, the drywall issue, was not completed by the date set forth in the Directive. However, Respondent had no control over the unrelated third-party contractor, JDS, completing that work; additionally, the hearing record indicated that Complainant agreed to await JDS completing the work. Therefore, the hearing record established that a workmanship issue remained at the time of the August 6, 2019 job site inspection. Thus, the Administrative Law Judge concludes that the hearing record established that there was a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108. However, that workmanship issue was one that had to be resolved through a licensed contractor other than Respondent due to the scope of Respondent’s license. Respondent had no control over the availability of the third-party contractor JDS and, thus, the failure of Respondent to complete corrective work within the Directive time period was demonstrated to be justified. Therefore, the Administrative Law Judge concludes that Respondent is not in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar decline to discipline Respondent’s ROC License 05982 and dismiss the Complaint.
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.
Recommended this date, May 12, 2020
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors