ALJDEC decisions subject to certification as final

2020A-00817-CHC-ROC · Registrar of Contractors · 2020-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott Doty,

COMPLAINANT,

v.

G M Window Installations LLC,

License No. ROC 268099,

RESPONDENT.

No. 2020A-00817-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 17, 2020

APPEARANCES: Complainant Scott Doty appeared on behalf of himself.

No one appeared on behalf of Respondent G M Window Installations, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On May 15, 2020, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on June 17, 2020, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

No representative for Respondent G M Window Installations, LLC (G M

Window) appeared at the scheduled time and the matter was convened in its absence at about 1:45 p.m. on June 17, 2020.

3. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that G M Window may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108); Ariz. Rev. Stat. sections 32- 1154(A)(2)(a),(12),(22); Ariz. Rev. Stat. section 32-1158.

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of G M Window.

5. G M Window holds Special Dual CR-7 Carpentry License No. 268099

issued by the Registrar.

6. G M Window’s qualifying party is Gabriel Manriquez.

7. On or about July 24, 2019, Complainant Scott Doty and G M Window entered into a residential remodeling contract.

8. G M Window did not provide Mr. Doty with a written contract that advised Mr. Doty of his right to file a complaint with the Registrar against G M Window for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

9. On or about August 21, 2019, G M Window began work under the

contract. G M Window did not obtain a permit for the project. G M Window stopped work on the project the same day.

10. On or about February 18, 2020, the Registrar received a Complaint from Mr. Doty alleging poor workmanship and abandonment on the part of G M Window.

11. On or about March 13, 2020, Registrar Investigator John Smith

conducted a job-site inspection.

12. On March 16, 2020, Investigator Smith issued a Directive.

13. The March 16, 2020 Directive provided, in relevant part, as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 3, 2020.

..........................

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Complaint Item 1: “...trim around windows not finished.”

Investigator’s Observation: Verified: This was described to be excessive cracking in the drywall patching next to the windows. The cracking in the drywall is excessive around all three windows on the north side of the house. The cracks are up to 1/4 inch in width. The drywall patches are still unpainted.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “Door never delivered or installed”

Investigator’s Observation: Verified: the respondent’s Estimate states: “2668 1h fiber glass exterior door, Full lite clear glass

The complainant’s stated this door was to be installed in a bedroom on the north side of the house – the same room one of the new windows was installed in.

That bedroom still has an old wood door installed.

Ne new door is visible on the property or installed in the bedroom wall.

Reference Pictures: 8-9

Governing Rule: A.R.S. § 32-1154 (A) 1: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 3: “Ask: Provide screens for previous job (2) 8’ slider screens, or cost to purchase @ window depot.”

Investigator’s Observation: Unverified: The complainant confirmed that the two patio doors that are missing screens were installed as part of an earlier contract / project. The complainant also confirmed that the two doors in question were installed more than two years ago.

Governing Rule: Section 32-1162(A) provides a two year statute of limitations for when a complaint must be filed with the Registrar, and prevents the Registrar from proceeding against a contractor on complaints that were not filed within the limitations period. Specifically, the complaint must be filed:

• For new home builds or other new building construction, within two years after the earlier of the close of escrow or actual occupancy. A.R.S. § 32-1162(A)(1).

• For all other projects, within two years after the completion of the specific project. A.R.S. § 32-

1162(A)(2).

Section 32-1162(A) prohibits the Registrar from proceeding against a contractor on complaints that were not filed timely. Based on the information submitted to the Registrar, the act was committed more than two years prior to the date of filing the complaint..............................

18. G M Window failed to comply with the Directive.

19. G M Window filed a timely appeal to the Citation.

14. The matter was referred to the OAH for an evidentiary hearing.

15. A hearing was held on June 17, 2020.

16. At hearing, Investigator John Smith testified regarding his investigation of the Complaint, the job-site inspection, and the issuance of the Directive.

17. Mr. Doty asserted that G M Window performed poor work when it remodeled his home. Mr. Doty also alleged that G M Window abandoned the project.

18. Mr. Doty explained that G M Window abandoned the job and performed poor work. Although G M Window installed the door on June 5, 2020, G M Window performed no other corrective work as required under the Directive.

19. G M Window did not request to appear telephonically and did not request

that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow G M Window additional time, G M Window did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, G M Window did not present any evidence to defend its license.

20. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on July 7, 2010, G M Window’s license was first issued on September 23, 2010, and is active. Such prior License record also shows that there are three open complaints against G M Window. Such prior License record also shows that one complaint resulted in discipline against G M Window’s license. Such prior License record shows that one complaint was resolved or withdrawn. G M Window’s disciplinary history is considered an aggravating factor in the recommended imposition of discipline and penalties.

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. Arizona Administrative 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. section 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. section 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. section 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).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The preponderance of the evidence shows that G M Window abandoned the project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

The preponderance of the evidence shows that G M Window did not

obtain a permit for the project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2)(a).

11. The undisputed evidence established that G M Window’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

12. The preponderance of the evidence shows that G M Window did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

13. The preponderance of the evidence shows that G M Window violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 268099 of G M Window Installations, LLC shall be suspended for a period of five calendar days.

It is further recommended that the Registrar require G M Window Installations, LLC to pay the sum of $500.00 as a civil penalty.

It is further recommended that if G M Window Installations, LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke G M Window Installations, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with G M Window Installations, LLC, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless G M Window Installations, LLC tenders payment of any outstanding prior civil penalty.

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, June 17, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors