ALJDEC decisions subject to certification as final
2020A-01236-CHC-ROC · Registrar of Contractors · 2020-10-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeffery Andrew Newbill,
COMPLAINANT
v.
HNH Construction LLC
License No. ROC 319358,
RESPONDENT
No. 2020A-01236-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: October 1, 2020
APPEARANCES: Jeffery Andrew Newbill on his own behalf; Jason Hogan for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On July 17, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on August 17, 2020 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on October 1, 2020.
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 HNH Construction LLC on June 8, 2020.
Respondent holds license No. 319358 issued by ROC. Respondent’s license was issued on April 23, 2018 and was suspended as of April 16, 2020.
Jason Hogan is a member of Respondent’s LLC. Mr. Hogan also is, or was, a member of H & N Development LLC.
H & N Development LLC is not licensed by ROC.
Complainant is Jeffrey Andrew Newbill.
On March 11, 2020, Mr. Newbill filed with ROC a complaint against Respondent and H & N Development LLC alleging poor work at a home that Mr. Newbill and Stephanie Clark purchased from H & N Development LLC. The complaint shows that the close of escrow was on August 30, 2019.
ROC investigator Stephen Lawton conducted a jobsite inspection on April 15, 2020.
On April 20, 2020, ROC issued to Respondent a Directive that provides in part:
You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 20, 2020.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Improper grading of garage floor on the west side of garage at the north end causes rain water to enter garage under door and pool under safe.
Investigator’s Observation: It was observed that the garage does not have required fall of 1/4 “per foot fall. Also it was observed that the paver driveway also fall in the wrong direction and towards garage.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 2: Barn door in guest room does not slide closed.
Investigator’s Observation: It was observed that the barn door does not slide closed. It appears that the door is dragging on the floor.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 3: Arcadia door in great room has visible gap in corner where dirt and air can enter from outside. Fixed window.
Investigator’s Observation: It was observed and verified that the fixed glass at arcadia door has not been sealed correctly.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 4: Multiple items with kitchen cabinets need to be addressed. A couple of replacement cabinet doors were received but the builder has not responded to request to have them installed.
Investigator’s Observation: Issues with the cabinets appear to be manufacturers issues. Doors supplied as replacement door have not been installed.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 6: Minor drywall work and repaint needed on door frame of west door from fun room.
Investigator’s Observation: It was observed and verified that the door needs drywall repair and paint.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 7: Top of tankless water heater has separated from wall.
Investigator’s Observation: It was observed that the top of water heater, where bracket attaches the water heater to the wall is pulling away.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
.
The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Newbill’s complaint were unsubstantiated.
Mr. Lawton provided credible testimony that the items listed in the Directive were workmanship deficiencies.
Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC.
ROC issued to Respondent a Citation dated June 8, 2020, through which italleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent filed an answer to the Citation through which Mr. Hogan provided that the Respondent was not involved in the construction the house, but rather that H & N Development LLC built the house as an owner/builder. At the hearing, Mr. Hogan testified to the same effect. He added that his partner in H & N Development LLC had abandoned the project and that he had not been trying to trick anyone.
Mr. Newbill testified that Mr. Hogan had told him that he builds houses. Mr. Hogan testified to the effect that he was referring to H & N Development LLC when he said he builds houses.
Mr. Newbill testified that Respondent had a sign in front of the house showing its name, ROC license number, and telephone number.
Mr. Hogan acknowledged that there was a sign in front of the house showing Respondent’s name, license number, and telephone number, but he testified that the sign was only there for advertising purposes, not because Respondent was involved in the project.
Mr. Lawton did not learn of Respondent’s position that it was not involved in the construction of the house until the week before the hearing. Mr. Lawton’s assumption was that Respondent and H & N Development LLC were tied or affiliated because mail to Respondent was not being returned. Mr. Hogan testified that correspondence from ROC was going to Keller Hogan at Respondent’s address rather than to H & N Development LLC.
Mr. Hogan testified that he had been to the home to make repairs for Mr. Newbill, but Mr. Newbill wanted perfection and he could not provide that.
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 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(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
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).
It has not been proven that Respondent acted as a contractor on Mr. Newbill’s house. See Ariz. Rev. Stat. § 32-1101. Consequently, it has not been proven that Respondent violated Ariz. Rev. Stat. sections 32-1154(A)(3) or (A)(22) and this matter should be dismissed.
RECOMMENDED ORDER
IT IS ORDERED that case number 2020-01236 is dismissed.
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, October 20, 2020.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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