ALJDEC decisions subject to certification as final

2020A-00374-CHC-ROC · Registrar of Contractors · 2021-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle S Knight,

COMPLAINANT

Main Construction and Landscape LLC,

License No. ROC 209358, 215939

RESPONDENT

No. 2020A-00374-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 19, 2021

APPEARANCES: T’shura-Ann Elias for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 20, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 4, 2020 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Main Construction and Landscape LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3) and (A)(22).

Respondent holds license numbers 209358 and 215939 issued by ROC.

After the Notice of Hearing was issued, Respondent filed for bankruptcy, which resulted in a long delay in the matter being conducted.

Through an Order dated April 13, 2021, the matter was scheduled to convene on May 19, 2021 at 1:00 p.m.

No representative for Respondent appeared at 1:00 p.m. and the matter was convened in its absence at about 1:20 p.m.

On or about July 14, 2018, Complainant Michelle S. Knight and Respondent entered a contract that called for Respondent to build a single family home for Ms. Knight.

The contract price was $424,050.96, with the estimated time of completion being nine months after the start of construction on July 30, 2018.

On or about January 18, 2020, Complainant filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part.

As of January 18, 2020, the roof, the plumbing, the walls, the electrical system, and the landscaping were not completed. As of that date, Ms. Knight had paid to Respondent $403,375.80.

On February 28, 2020, ROC’s Cliff Corlett conducted a jobsite inspection. At that time the parties agreed to close the complaint with the Respondent agreeing to direct sufficient efforts and workers to get the project completed.

On or about March 25, 2020, Ms. Knight asked that the case be reopened, which ROC did.

On April 10, 2020, Mr. Corlett conducted a second jobsite inspection at which time he determined that Respondent had made very little progress toward completing the project.

On April 15, 2020, ROC issued to Respondent a Directive through which it directed Respondent to properly staff the project and to complete it in a timely manner. The Directive required Respondent to notify ROC that it had complied with the Directive no later than May 11, 2020.

On May 12, 2020, Mr. Corlett conducted a compliance jobsite inspection and determined that Respondent had not completed the project as ROC ordered it to do.

ROC issued to Respondent a Citation dated May 14, 2020 through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3) and (A)(22).

At the hearing, Ms. Knight testified to the effect that although Respondent’s correspondence with ROC shows that he had remained in contact with Ms. Knight and her husband during construction, this was not true.

Respondent last performed work at the project on December 19, 2019.

Because Respondent did not complete the project, Ms. Knight paid other contractors over $100,000 to do so. As of the hearing date, Respondent had not refunded to Ms. Knight any of the money she had paid to it.

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 in part:

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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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(B) provides that:

A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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 Respondent has not completed the project without legal excuse for that failure, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1). This is also a violation Ariz. Admin. Code section R4-9-108(B), which is a violation of section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive, which is a violation Ariz. Rev. Stat. section 32-1154(A)(22).

Because Respondent has violated the applicable statutes as charged, ROC has authority to discipline its license.

Considering the facts and circumstances of this matter, including Respondent’s failure to appear at the hearing, Respondent’s licenses should be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractor’s revoke Respondent Main Construction and Landscape LLC’s license numbers 209358 and 215939.

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 2, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000