ALJDEC decisions subject to certification as final

2020A-00664-CHC-ROC · Registrar of Contractors · 2020-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janmichael Abourette,

COMPLAINANT,

v.

Wayne T Clifford Construction LLC,

License No. ROC 319391,

RESPONDENT.

No. 2020A-00664-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 19, 2020 at 1:30 PM.

APPEARANCES: Janmichael Abourette (“Complainant”) appeared on his own behalf. Donivan Clifford appeared on behalf of Wayne T Clifford Construction LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On April 11, 2018, the Registrar issued ROC License No. 319391 for Specialty Dual CR-61 Carpentry, Remodeling, and Repairs contracting to Respondent. Respondent’s address of record for the license is 313 N. 57th Pl. Mesa, AZ 85205-82020. Wayne Thomas Clifford is listed on the license as a Qualifying Party and Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record for ROC License No. 319391, as reflected on the Registrar’s public website on August 19, 2020. Such prior license record reflects that Respondent’s license is active and renewed through April 30, 2022. The license has not been previously disciplined, nor have there been any resolved or otherwise settled complaints against the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond for the license issued through RLI Insurance Company effective April 05, 2018.

On February 07, 2020, the Registrar received a complaint filed by Complainants alleging abandonment of the project and poor work performance. Attached to the complaint was a copy of the party contract, development permit, and proof of payments.

On February 25, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on March 26, 2020, at 2:00 p.m.

On March 27, 2020, the Registrar issued a Rescheduled Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on March 27, 2020, at 2:00 p.m.

On March 27, 2020, Registrar investigator Randy Morris (“Investigator Morris”) inspected the work that had been done on the project to date and took 131 photographs of the project. When he was finished, Investigator Morris drafted Jobsite Inspection Notes.

On April 03, 2020, Investigator Morris issued a Written Directive from the Registrar to Respondent because he substantiated Complainants’ allegations that the work Respondent had done on the project failed to meet minimum workmanship standards. Respondent was put on notice that it had until 5:00 p.m. on May 04, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22) and 32-1154(E).

On May 14, 2020, the Registrar issued a Citation and Complaint to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until May 29, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On May 29, 2020, the Registrar received Respondent’s Answer whereby Respondent made several complaints against Investigator Morris and alleged that Complainant’s project had received a “Certificate of Completion” by city inspectors and only a “handful” of punch list items remained outstanding. Respondent noted he halted remediations due to Complainant’s “unreasonable requests.” Respondent further alleged that he had submitted a request to the Registrar’s Building Confidence Program for an informal inspection, but that Complainant submitted his Complaint shortly afterward which took precedence over his request so he did not receive a response from the Registrar. Respondent concluded by alleging that Complainant owed him “upwards of $10,000.00,” and noted that he formally contested each of the Registrar’s charges.

On June 01, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 27, 2020. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(12) (“Failure in any material respect to comply with this chapter; Namely, A.R.S. § 32-1158.”)

Charge 3: A violation of A.R.S. § 32-1154(A)(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.”).

Hearing Evidence

Complainant testified on his own behalf, called Investigator Morris as a witness, and submitted Exhibits 1-8 and 10-11 into the record. Respondent called Donivan Clifford to testify and did not offer any exhibits for admission into the record. The Registrar’s agency file and Notice of Hearing were also admitted into the record as their own exhibits. The substantive facts are as follows:

Complainant owns residential property located at 4477 E. Marshall Ave. Gilbert, AZ 85297.

Donivan Clifford (“Mr. Clifford”) is Wayne Thomas Clifford’s son and business partner. He is co-owner of Respondent as serves as its Operations Manager.

On or about January 25, 2019, Complainant and Respondent entered into a residential contractual agreement whereby Complainant agreed to pay Respondent the sum total of $135,497.04 for a whole-home renovation project at the aforementioned property.

Mr. Clifford was in charge of Respondent’s project.

The parties failed to execute a $1,325.00 written Change Order for a cabinet add-on.

Complainant issued payments totaling $127,500.00 to Respondent for this project.

Respondent’s contract with Complainant did not include estimated start or completion dates, the deposit required, if any, or a disclaimer advising customers their right to contact the Registrar including the Registrar’s contact information.

On March 12, 2019, the project commenced.

On January 19, 2020, Respondent stopped work on the project in response to complaints made by Complainant.

On an unknown date the city performed an inspection whereby the project was “green tagged.”

Complainant submitted 20 complaint items with his complaint, of which 16 complaint items were substantiated by the Registrar. Specifically, Investigator Morris substantiated complaint items 1-3, 5-9, 11-15, 17-18, and 20.

Respondent did not participate in the Registrar’s rescheduled jobsite inspection because he did not receive notice that it had been rescheduled.

On or about May 07, 2020, Respondent attempted to access the jobsite to perform remediations but was denied access.

On May 08, 2020 Investigator Morris was informed by Complainant that Respondent had not complied with the Registrar’s Directive.

Although the parties were in communication during the Directive compliance period, they were unable to schedule time(s) for Respondent to perform the required corrective work on the project.

No extension of the Registrar’s Directive was granted to Respondent.

The parties did not enter into a settlement agreement prior to the Directive’s compliance deadline.

On May 08, 2020, Investigator Morris issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that an onsite review would be conducted at the project site on May 12, 2020, at 9:30 a.m.

Respondent did not participate in the compliance jobsite inspection because he did not receive the notice.

On May 12, 2020, Investigator Morris re-inspected the project site and took 20 photographs. When he was finished, Investigator Morris drafted Compliance Jobsite Inspection Notes.

On May 12, 2020, Investigator Morris issued a Warning Letter to Respondent to advise that its contract with Complainant did not meet statutory minimum elements in violation of Ariz. Rev. Stat. § 32-1158(A). Respondent was further advised that failure to comply with Ariz. Rev. Stat. § 32-1158(A) was a violation of Ariz. Rev. Stat. § 32-1154(A)(12), which could result in discipline against Respondent’s license including suspension or revocation.

On May 12, 2020, Investigator Morris escalated Complaint No 2020-00664 to the Registrar’s legal department with a Citation Recommendation.

In closing, Complainant argued that it is going to take a significant amount of money to remediate Respondent’s poor workmanship, and opined that he should not be financially responsible for doing so.

In closing, Respondent argued that he is still willing to remediate Complainant’s project, but doubted he would be able to do so satisfactorily because of Complainant’s “impossibly high” standards.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Admin. Code 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.”

Ariz. Rev. Stat. § 32-1154(A)(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.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” Namely, Ariz. Rev. Stat. § 32-1158(A) which provides that a contract between a contractor and property owner amounting to more than $1,000.00 must contain the following information in writing:

The name of the contractor and the contractor's business address and license number.

The name and mailing address of the owner and the jobsite address or legal description.

The date the parties entered into the contract.

The estimated date of completion of all work to be performed under the contract.

A description of the work to be performed under the contract.

The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

That the property owner has the right to file a written complaint with the Registrar for an alleged violation of Ariz. Rev. Stat § 32-1154(A). The contract shall contain the Registrar's telephone number, website address, and shall state that complaints must be made within the applicable time period as set forth in Ariz. Rev. Stat § 32-1155(A). The information must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor.

Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

Here, the material facts are clear.

The evidence of record establishes that Complainant contracted with Respondent for a residential renovation project, and that the contract itself did not contain all 9 statutorily required contractual elements. The record also establishes that Complainant owes Respondent an outstanding balance of $7,997.04 or $9,322.04 on the contract. It is clear from the record that Respondent’s work on the project fell below the Registrar’s minimum workmanship standards. It is also clear from the record that the Registrar’s post investigative Directive required Respondent’s full compliance by May 04, 2020, and that Respondent did not timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification(s) or excuse(s) for failing to timely and completely remediate all complaint action items outline in the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that Respondent failed to adhere to a Registrar Directive, and had no affirmative defense(s) for doing so.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(12); namely 32-1158(A), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against Respondent’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent Wayne T Clifford Construction LLC, ROC License No. 319391, be suspended for three (3) days.

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.

Done this day, September 08, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors