ALJDEC decisions subject to certification as final

2019A-05744-CHC-ROC · Registrar of Contractors · 2020-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Kay Rogers,

COMPLAINANT

AZ Patio Cover Sun Control LLC,

License No. ROC 284548,

RESPONDENT

No. 2019A-05744-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 22, 2020

APPEARANCES: Jennifer Kay Rogers on her own behalf; Ismael Garcia on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 20, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 22, 2020 at the Office of Administrative Hearing.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent AZ Patio Sun Control LLC on January 27, 2020.

Respondent holds license number 284548 issued by ROC. Ismael Garcia is AZ Patio’s qualifying party.

Complainant Jennifer Kay Rogers hired AZ Patio to install a patio cover at her home.

On November 18, 2019, ROC received from Ms. Rogers a complaint against AZ Patio alleging that AZ Patio had not obtained the required building permit.

ROC assigned Investigator Steve Klein to Ms. Rogers’s complaint.

Mr. Klein determined that the job did require a permit and that AZ Patio had failed to obtain one.

On December 23, 2019, ROC issued to AZ Patio a Directive through which it ordered AZ Patio to obtain the required permit and to notify ROC that it had done so by 5:00 p.m. January 10, 2020.

When asked how he determined how much time AZ Patio should be given to comply with ROC’s Directive, Mr. Klein responded that ROC allows at least fifteen days for contractors to comply with its directives. He then added that it might take longer than that to obtain a permit, but he would expect to hear from AZ Patio if that was the case here.

When asked if the Directive provided AZ Patio with a reasonable amount of time to obtain the permit, Mr. Klein answered that it was enough time for AZ Patio to follow-up with the City and if AZ Patio could not obtain the permit within the time that ROC ordered it to do so, he would have expected AZ Patio to contact him to let him know and he could have worked with AZ Patio, but AZ Patio did not contact him.

On January 27, 2020, ROC issued to Respondent a Citation through which it alleged that AZ Patio may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

At the hearing, Mr. Garcia acknowledged that AZ Patio was responsible to obtain the permit and that it had not done so. He testified to the effect that his former employee was responsible for doing so.

The parties agreed to hold the matter open for forty-five days to allow AZ Patio time to obtain the required permit. The parties were directed to file a status report on or before June 4, 2020.

On June 1, 2020 Ms. Rogers filed a status report showing that as of that date, AZ Patio had not obtained the permit.

As of June 17, 2020, AZ Patio had not filed with the Office of Administrative Hearings a status report and there is no evidence in the record to show that AZ Patio has obtained the permit.

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:

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3. Violation of any rule adopted by the registrar.

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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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....

Ariz. Admin. Code section R49108 provides that “A contractor shall perform all work in a professional and workmanlike manner [and a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”

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 shows that AZ Patio violated Ariz. Admin. Code section R4-19-108 by failing to obtain the required permit, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Considering that AZ Patio has not obtained the permit, the preponderance of the evidence shows that AZ Patio violated Ariz. Rev. Stat. section 32-1154(A)(22).

Because AZ Patio has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.

Considering the facts and circumstances of this matter, AZ Patio’s license should be suspended for one day and a civil penalty of $250.00 should be assessed against it.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter AZ Patio Sun Control LLC’s license number 284548 be suspended for one day;

IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against AZ Patio Sun Control LLC a civil penalty of $250.00.

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.

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-137160-45720000Done this day, June 18, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000