ALJDEC decisions subject to certification as final
2019A-06151-CHC-ROC · Registrar of Contractors · 2020-06-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Amy D Crawford,
COMPLAINANT
v.
GHA Architects Inc.,
DBA: GHA General Contracting,
License No. 290393,
RESPONDENT
No. 2019A-06151-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 11, 2020
APPEARANCES: Amy D. Crawford (Complainant) appeared on her own behalf.
Respondent GHA Architects Inc. dba GHA General Contracting (Respondent) and Owner Ali (Owner) were represented by Attorney Andrew Rahtz.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Respondent is the holder of License No. 290393, a KB-2 Dual Residential and Small Commercial license, issued by the Arizona Registrar of Contractors (Registrar) in 2014.
Following Respondent’s design of a remodel, Complainant contracted with Respondent in November of 2018 for a substantial remodeling project on her residence, with Complainant and her husband coordinating some identified work on their own. There were some delays in the project as some of the work that Respondent was contracted to do could not be done until certain of Complainants’ work was done.
At hearing, Owner indicated that Respondent’s portion of the work was done by Thanksgiving 2019.
On November 30, 2019, Respondent requested that Complainant settle up on the contract payment.
According to Respondent’s project manager and the documents, Complainant was installing the new windows, doing the painting, installing the flooring (except in one area), the HVAC system, and some fencing.
On December 13, 2019, the Registrar received Complainant’s Complaint. Complainant listed twenty (20) complained of items.
At a jobsite inspection in January 2020, the Registrar’s Investigator, Paul Smith found that the City of Scottsdale (City) building permit was still open. Investigator Smith informed Complainant that the City permit needed to be closed out so he could inspect for workmanship issues under the contract.
On January 16, 2020, Investigator Smith issued a Written Directive on two items: for Respondent to complete the project in accordance with the contracts and approved change orders “in an appropriate manner;” and, to correct City-determined items “by appropriate means.” The Directive required Respondent to perform corrective work and to so notify the Registrar “prior to 5:00 p.m. on February 4, 2020.”
On February 3, 2010, the City’s inspection found that (unspecified) corrections were not complete and that outlets work was not up to code (needing GFCI protection at required locations).
The hearing record does not indicate whether either Respondent or Complainant requested an extension of time to perform the Directive work.
A further Registrar inspection was conducted on February 13, 2010. Owner noted that, at that time, he had indicated to Investigator Smith that Respondent’s work was done and that Complainant also indicated that their work was done.
On February 17, 2020, Respondent informed Investigator Smith that, in December 2019, Respondent wrote to the City asking to be removed from the permit, for the reason that Complainant had not paid them for “physical” work that had been completed by Thanksgiving 2019. Respondent further indicated that, if he was able to do so, he would call for a further final City inspection and release to Complainant the certificates of insurance and stucco.
On February 18, 2020, Respondent notified Complainant that the City inspection would take place the next day and that Respondent would release the two certificates to Complainant. Complainant responded that she needed more than 24 hours’ notice for the inspection. Respondent was able to reschedule the final City inspection for February 25, 2020.
On February 26, 2020, Respondent notified Investigator Smith that the work passed the City inspection.
At some point, Investigator Smith referred the matter to the Registrar’s legal department for a Citation and Complaint.
By letter dated March 9, 2020, Respondent filed its Answer to the Citation.
The matter was later referred to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On April 10, 2020, the Registrar issued a Notice of hearing, which indicated that the Registrar’s Citation and Complaint had charged Respondent with possible violation of A.R.S. § 32-1154(A)(22).
A.R.S. § 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.”
At the May 11, 2020 administrative hearing, Respondent’s Exhibits 1 through 37 were admitted and Complainant’s Exhibits 1 through 12 were admitted.
At hearing, Investigator Smith noted that he had not performed a workmanship inspection because the City permit had still been open.
At hearing, Complainant referred to a list of items that either needed to be done or were indicated as not being completed by Respondent. Complainant complained of items of poor workmanship and promises not kept to fix things. Complainant argued that the work in the home remodel is “falling apart” and that she is fearful of things continuing to do so since the work was done. No other person testified on behalf of Complainant.
At hearing, Respondent noted that their work had been completed and that, as to any items they had needed to correct during the construction, they awaited the homeowners finishing their work before Respondent could proceed on its work at various times. Additionally, Respondent noted that it is still owed money on the contract.
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that the instant complaint is the only complaint against Respondent’s 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. A.A.C.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 A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. 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.” A.R.S. § 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. A.R.S. § 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.” The hearing record was not clear as to whose responsibility it may have been to call for the City inspection; both parties were performing or having construction work performed on this project. The hearing record indicates that Respondent volunteered to do so in the presence of Investigator Smith and Complainant on February 13, 2020. Once scheduled, Complainant then caused the City inspection to be rescheduled; Complainant could not have called for the Registrar to come for a workmanship inspection until the City inspection was done. The Administrative Law Judge concluded that the failure of Respondent to complete the corrective work within the Directive time period was justified by the circumstances. Therefore, Complainant failed to establish that Respondent had not taken appropriate corrective action following the written Directive. Thus, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that Respondent’s ROC License 290393 shall not be disciplined.
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, June 1, 2020
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors