ALJDEC decisions subject to certification as final
2019A-03654-CHC-ROC · Registrar of Contractors · 2019-12-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Josephine S. Sherman,
COMPLAINANT
v.
W B 12 Corp,
ROC License: ROC 230356,
RESPONDENT.
No. 2019A-03654-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 18, 2019
APPEARANCES: Complainant Josephine S. Sherman appeared on behalf of herself. George Boone appeared on behalf of Respondent W B 12 Corp.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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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, 2019, 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.
4. On August 19, 2019, Arizona Registrar of Contractors (ROC) Investigator Christ Allison conducted a job site inspection.
5. On August 21, 2019, Investigator Allison issued a Directive 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.
2. Grout in bathroom tub is coming apart and falls in tub when you take a shower.
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 Directive by September 9, 2019.
7. On September 16, 2019, the ROC issued a Citation against WB’s license. The Citation contained allegations that WB violated Ariz. Rev. Stat. section 32-1154(A)(1); Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1124(B); Ariz. Rev. Stat. sections 32-1154(A)(12) and (A)(22).
8. WB filed a timely answer to the Citation.
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 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 Directive. 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 directly 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 Directive was performed by another contractor.
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 to do so. The evidence presented at hearing shows that Ms. 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 Registrar’s public website. According to the information available on the website on December 9, 2019, WB’s license was first issued on March 14, 2007, 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
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.
“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).
“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).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
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:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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3. Violation of any rule adopted by the registrar.
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11. Failure of a contractor to comply with any safety or labor laws or codes of the federal government, this state or political subdivisions of this state.
12. Failure in any material respect to comply with this chapter.
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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.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
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).
The preponderance of the evidence does not show that Respondent abandoned the contract under Ariz. Rev. Stat. section 32-1154(A)(1).
The preponderance of the evidence shows that WB performed the work that is the subject of the Directive.
The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, 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 of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(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
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors