ALJDEC decisions subject to certification as final

2020A-01588-CHC-ROC · Registrar of Contractors · 2020-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Scott Thomas,

COMPLAINANT,

KLB HomeCrafters LLC,

License No. 316821,

RESPONDENT.

No. 2020A-01588-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 23, 2020

APPEARANCES: Complainant William Scott Thomas appeared on behalf of himself. Kelly Brown appeared on behalf of Respondent KLB HomeCrafters, LLC (KLB).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

KLB holds License No. 31682 issued by the Arizona Registrar of Contractors (Registrar).

Kelly Brown is the qualifying party for KLB.

On or about July 1, 2019, Mr. Thomas and KLB entered into a residential remodeling contract.

On or about July 19, 2019, KLB started work.

On or about December 31, 2019, KLB stopped work.

On or about March 30, 2020, the Registrar received a complaint from

Mr. Thomas alleging abandonment on the part of KLB.

On or about May 7, 2020, Registrar Investigator Paul Smith conducted a jobsite inspection. Mr. Thomas and Ms. Brown were present at the jobsite inspection.

Ms. Brown admitted that KLB abandoned the project. Ms. Brown stated that KLB was “going out of business.” Mr. Thomas hired another contractor to finish the project. Investigator Smith observed that the following items were not finished by KLB:

Tile backsplash in the kitchen

Hall bathroom sink faucet

Barn door in the master bathroom

Master shower glass surround

Master bath shower fixtures

The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

KLB filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

On June 23, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on July 23, 2020 at the Office of Administrative Hearing.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and Citation.

A hearing was held on July 23, 2020.

At hearing, Mr. Thomas testified on behalf of himself. Investigator Steve Nelson testified regarding Investigator Smith’s investigation of the complaint. Kelly Brown testified on behalf of KLB.

Mr. Thomas explained that KLB did not finish the project. Mr. Thomas incurred a total cost of $5,231.56 to have the following items completed by other contractors:

Backsplash Tile for GNLTile $544.79

Backsplash Installation $1,110.00

Sink Connection $7.80

Pex pipe $12.62

Plumbing Parts $223.81

Impregnator Grout Sealer $22.94

Master bath shower plumbing $300.00

Master bath shower plumbing $350.00

Barndoor for Master bath $329.21

Install Barn Door and touch-up Paint $350.00

Master Shower Glass surround $1,980.39

Mr. Thomas incurred costs to pay other contractors to correct KLB’s poor work. However, Investigator Nelson explained the Registrar did not allege through the Citation that KLB performed poor work because KLB hired another contractor to correct the work before the job site inspection and complaint.

Mr. Brown asserted that KLB did not abandon the project, but was unable to complete the work.

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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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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The preponderance of the evidence shows that Respondent has violated

Ariz. Rev. Stat. section 32-1154(A)(1) by failing to complete the work it contracted to perform without providing a legal justification for that failure.

A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this

article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

The preponderance of the evidence shows that the cost to complete the

work abandoned by Respondent was $5,231.56.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter, the Registrar of Contractors suspend Respondent KLB HomeCrafters, LLC’s license number 316821 until such time that the Registrar receives proof that Respondent has paid to Complainant William Scott Thomas $5,231.56 as restitution for Respondent’s violation of Ariz. Rev. Stat. section 32-1154(A)(1).

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-137160-45720000Done this day, August 12, 2020.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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