FINACT2019a-03654-chc-roc.pdf

2019A-03654-CHC-ROC · Registrar of Contractors · 2020-01-10

I REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA J

Josephine S Sherman, Case No. 2019-03654 COMPLAINANT, Docket No. 20194-03654-CHC-ROC

W B 12 Corp FINAL ADMINISTRATIVE License No. ROC 230356, DECISION AND ORDER

RESPONDENT. l0 lt Under A.R.S. S 41-1092.08(B), the Registrar may review and accept, modify, or reject

t2 an administrative law judge's written decision. If the Registrar modifies or rejects that

l3 decision, then the Registrar must provide written justification setting forth the reasons for the

modification or rejection of each finding of fact or conclusion of law.

l5 REGISTRAR'S ACCEPTANCE

l6 In this case, a hearing was held, and the administrative law judge issued a written

t7 decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that

t8 decision and accepts it.

l9 CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge's decision, that

2l decision is the final administrative decision in this case and becomes effective on February

15,2020.

IT IS FURTffiR ORDERED that Respondent pay a civil penalty in the amount of

$500.00 payable to the Registrar on or before 30 days from the effective date of this Order.

Payment may be hand-delivered to the Registrar's physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

I of3 REGISTRAR OF CONTRACTORS 1700 W. Washinglon St.- Ste. 105 - Phoenix, AZ 850M -2a12 Telephone (602)5 42- I 525 Toll Ffte (877)692-97 62 I

IT IS FURTffiR ORDERED that if Respondent fails to pay the entire amount of the civil penalty on or before 30 days following the effective date of the final order, Respondent's licenses shall be revoked, effective on such deadline date. No future license shall be issued to

any entity consisting ofpersons associated with Respondent, as defined in A.R.S. $ 32- 1101(AX7), unless Respondent tenders payment ofany outstanding prior civil penalty. FINAL NOTE On page 2 line 28 replace "explained" with "explained." On page 4 lines l6-18, delete the reference to A.R.S. $ 32-1154(AX11). l0 While the Registrar cited Respondent for a violation of A.R.S. $ 32-1154(,{)(12), ll namely A.R.S. li 32-1124(B) (failure to use the acronym "ROC" before its license number), the A.L.J. decision does not contain a finding of fact or conclusion of law regarding a l3 violation of A.R.S. $ 32-l124(B), so the Registrar will treat the charge as unproven. t4

Dated January 6,, 2020. l6 By ls/ Jose h citelli C telli t7 Council Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail January 6, 2020 to: Respondent 2t W B 12 Corp 690 W Flake Ave Snowflake, A285937 Complainant Josephine S Sherman 8249 Nutt Lane Snowflake, A285937

Copy sent electronically this same date to:

2of3 RDCISTRAR OF CONTRACTORS 1700 W. Washington St.- Stc. 105 - Phoenix, AZ 85007 -2812 Telephone (602)542-l 525 T oll Ftee (877\692-97 62 kt3t 3/19 I Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at emaiI address on record with the Registrar

Case No. 2019-03654

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of3 RECISTRAR OF CONTRACTORS 1700 W. Washington St.- Ste. 105 - Phocnix. AZ 85001-2812 Telephone (602)542-l 525 Toll F rce (877\692-97 62 LBlrl3/19 RECEIVED 12.10.2019 ROC LEGAL

I IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Josephine S. Sherman, No. 201 9A-03654-CHC-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION W B 12 Corp, ROC License: ROC 230356. RESPONDENT.

HEARING: November 18, 2019 APPEARANCES: Com plainant Josephine S. Sherman appeared on behalf of herself. George Boone appeared on behalf of Respondent W B 12 Corp. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thom pson

FINDINGS OF FACT 1. Complainant Josephine S. Sherman and Respondent W B 12 Corp (WB) entered into a construction contract wherein WB would remodel Ms. Sherman's home. 2. WB started work in November of 2016 and stopped work in August of 2018. 3. On or about July 17, 201 9, Complainant Josephine S. Sherman filed a complaint against Respondent WB 12 Corp (WB) alleging poor workmanship and abandonment in connection with a home remodeling contract.l 4. On August 19, 2019, Arizona Registrar of Contractors (ROC) lnvestigator Christ Allison conducted a job site inspection. 5. On August 21 , 20lg,lnvestigator Allison issued a DlREcrlvE which notified wB that its work failed to meet minimum workmanship standards. The ROC directed WB to correct the following items by appropriate means, by September 9, 2019: 1. Grout holding the front door is falling apart. 2a 2. Grout in bathroom tub is coming apart and falls in tub when you take a shower.

against WB in 2018 regarding other work that was performed Ms. Sherman filed a previous complaint

underthe same contract. See ROC complaint 2018-2710.

Offlce of Administrative Hearings '1740 West Adams Street. Lower Level Phoenix, Arizona 85007 (602)542-S826 RECEIVED 12.10.2019 ROC LEGAL

3. Tile and grout work in bathroom, kitchen, front door and closet is coming apart and tile is raising from the floor. 4. Also very poor grout work in all case and not installed properly.

6. WB did not correct the complaint items listed in the DTRECTVE by September 9,2019.

7. On September 16,2019, the ROC issued a CtrAloN againstWB's license. The CTTATToN contained allegations that WB violated ARtz. REV. STAT. section 32- I 1154(A)(1); ARrz. REV. SrAr. section 32-1 154(A)(3) (specifically, ARtz. ADMIN. CoDE I section R4-9-108; ARrz. REV. SrAr. section 32-1 124(8); Aarz. REV. SrAr. sections 32- 1 54(A)('t 2) and (A)(22). 8. WB filed a timely answer to the CtrAloN. 9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 10. A hearing was held on November 18,2019. 11. At hearing, Ms. Sherman testified on behalf of herself. George Boone testified on behalf of WB. 12. Ms. Sherman explained that WB performed poor work when it remodeled 't8 her home. 13. Mr. Boone did not dispute the ROC's allegation that the work failed to meet minimum workmanship standards. Mr. Boone contended that Ms. Sherman paid another contractor named, Larry Norman, separately to complete the work that was the subject of the DIREclvE. Mr. Boone stated that Larry Norman was not his full time employee, nor his subcontractor. Mr. Boone also asserted that some of the checks were paid direcfly to Mr. Noman. 14. I do not find Mr. Boone's testimony to be credible. Furthermore, Mr. Boone did not even allege in his answer that the work described in the DtREclvE was performed by another contractor. 2a 15. Ms. Sherman explaiend that Larry Norman worked for WB. Ms. Sherman explained that she wrote checks directly to Mr. Norman because Mr. Boone directed her RECEIVED 12.10.2015 ROC LEGAL

6. "Statutes shall be liberally construed to effect their objects and to promote justice." ARrz. REV. SrAr. S 1-21 1(B).

7. The purpose of the Registrar's licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesfhetrc Property Maintenance v. Capital lndem. Corp.,183 Ariz.74,900 P. 2d 1210 (1995).

B. The Administrative Law Judge may consider ROC's administrative record. See ARrz. Aotvttt. Cooe S R4-9-1 18.

9. ARrz. REV. SrAr. section 32-1154( ) 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 '10 acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the

abandonment or refusal. 3" Violation of any rule adopted by the registrar.

11. Failure of a contractor to comply with any safety or labor laws or codes of the federal government, this state or political '18 subdivisions of this state.

12. Failure in any material respect to comply with this chapter

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter wrthout 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. ARrz. ADMIN. Coor section R4-9-108(A) provides that "A contractor shall perform all work in a professional and workmanlike manner." RECEIVED 12.10.2419 ROC LEGAL

to do so. The evidence presented at hearing shows that lVls. Sherman wrote most of the

checks to Mr. Boone.

16. I find Ms. Sherman's testimony to be credible. 17. Administrative notice is taken of WB's License Record as shown on the Registrafs public website. According to the information available on the website on December 9, 2019, WB's license was first issued on March 14, 20O7, and is active. Such prior License record also shows that there is one complaint against WB's license, and that WB's license has been disciplined twice. CONCLUSIONS OF LAW I 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. ARrz. ADMTN. CoDE S R2-19-1 19. 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." ARrz. REV. SrAr. S 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." ARrz. REV. STAT. S 41- 10s2.07(GX3). 4. A preponderance ofthe 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 DrcroNARy 1373 (1oth ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. lndustrial Commission of Arizona,226 Ariz.395, 249 P.3d 1095 2a (201 1 )(citation omitted); state v. lvlcFall, 1 03 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). RECEIVED 12.10.2019 ROC LEGAL

11. ARtz. REV. Sret. 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 Antz. REV. SrAr. section 32-1 154( )(22).

12. The preponderance of the evidence does not show that Respondent abandoned the contract under ARrz. REV. SrAr. section 32-1 154(4)(1 ).

13. The preponderance of the evidence shows that WB performed the work that is the sub.ject of the DrREcrvE.

B 14. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of I ARrz. REV. Srnt. section 32-1 154(AX3), namely A.A.C. R4-9-108.2 15. The preponderance of the evidence shows that Respondent failed to correct the items listed in the Registrar's DtnEcrtve without valid justification, which is a violation of ARrz. REV. Srnr. section 32-1154( )(22). '13 RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, '15 the Registrar suspend License No. 230356 of W B 12 Corp, for a period of three calendar days. It is further recommended that the Registrar require Respondent to pay the sum 1B of $500.00 as a civil penalty pursuant to ARIZ. REV. SrAr. section 32-1 154(E). '19 It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in ARtz. REV. SrAr. section 32-1 101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, December 9, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

2 ARrz. REV. SrAr. section 32-'1 154(4)(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." A.A.C. 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." RECEIVED 12.10.2019 ROC LEGAL

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors