ALJDEC decisions subject to certification as final

2020A-02516-CHC-ROC · Registrar of Contractors · 2020-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ray Tabassian,

COMPLAINANT

JC Contracting LLC,

License No. ROC 327726,

RESPONDENT

No. 2020A-02516-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 4, 2020

APPEARANCES: Norman C. Keyt, Esq. for Complainant; Erika L. Johnsen, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 2, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 4, 2020 at the Office of Administrative Hearings.

The Notice of Hearing shows that ROC alleges that Respondent JC Contracting LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 327726 issued by ROC. Jovan Gonzalez Campa is respondent’s qualifying party; his wife Emma Gonzalez handles Respondent’s accounting, marketing, and charitable work.

Complainant is Ray Tabassian. The parties entered two agreements for work at a house on East Cortez Drive in Scottsdale.

On May 26, 2020, Mr. Tabassian filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part.

Mr. Tabassian contacted Respondent regarding fixing cracks in, and painting a tennis court. Respondent quoted a price of $14,000 for that work. Mr. Tabassian informed Respondent that his budget was $3800. The parties then agreed that Respondent would perform cosmetic repairs using low-cost material and the painting for $3800. Mr. Tabassian paid $1900 down, but as of the hearing date had not made any additional payments to Respondent.

The scope of work scope of work was set out in an invoice dated April 15, 2020:

Floor Prep

-Acid wash slab

-Grind & Cut cracks

-Repair and seal all cracks on Tenis [sic] Court by filling with epoxy

-Patchcrete over all the cracks

-Grind cracks once more

-patchcrete over the whole slab

-Let set for 1 day Primer Paint

- using heat resistant paint

On or about May 1, 2020, the parties entered a second agreement that called for Respondent to paint the exterior wall and fence of the tennis court for a price of $1500. Mr. Tabassian paid $750 down for that work, but as of the hearing date had made no other payments to Respondent.

Respondent began working on the tennis court but experienced problems getting the cracks properly sealed. Mr. Tabassian was unhappy with the progress and Respondent fired the crew it had working on the project.

Through a note on the second invoice, Respondent acknowledged that the work on the tennis court had not gone as planned, but Respondent was working to get the job done the right way. Ms. Gonzalez testified to the effect that this note was referring to the fact that the job had taken longer than expected.

After Respondent’s second crew had been working on the project for about a week and a half, Mr. Tabassian contacted Respondent stating that the crew had not been at his house for about a week.

Mr. Gonzalez contacted Mauricio Hernandez Escarega, one of the crew members, who informed Mr. Gonzalez that he was not willing to work for Mr. Tabassian anymore because Mr. Tabassian would not allow him to do the work unimpeded.

On May 19, 2020, Mr. Gonzalez, Mr. Hernandez, and Mr. Tabassian all met at the property. During that meeting, Mr. Gonzalez learned that Mr. Tabassian had paid Mr. Hernandez to perform work including placing a layer of concrete over the tennis court. Respondent did not authorize Mr. Hernandez to take on this work and Respondent was not paid for the work, but rather Mr. Tabassian paid Mr. Hernandez directly.

On May 19, 2020, after Mr. Tabassian raised the fact that he had paid Mr. Hernandez directly to conduct work on the tennis court, Mr. Hernandez expressed his frustration that Mr. Tabassian had not allowed him to complete the work unimpeded and he left the site.

After Mr. Hernandez left, Mr. Gonzalez and Mr. Tabassian engaged in discussion, with Mr. Gonzalez explaining that he would develop a plan to complete the work. Before Respondent had prepared any such plan, Mr. Gonzalez learned that Mr. Tabassian had filed with ROC his complaint against Respondent.

In his complaint, Mr. Tabassian acknowledged that he had paid Mr. Hernandez directly for work including putting down concrete on the tennis court. Mr. Tabassian alleged that Mr. Hernandez had applied an unknown brand of material and had cheated Mr. Tabassian.

ROC investigator Dennis Bierma conducted a jobsite inspection on June 22, 2020. Mr. Gonzalez arrived at the house for the inspection, but Mr. Tabassian would not allow him on the property.

On July 2, 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 August 12, 2020.

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DIRECTIVE REQUIREMENTS

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

Complaint form submitted as a narrative, simplified allegations of poor workmanship are listed below.

Complaint Item 1: “Job is not completed to the original contract and agreements at this point.” Investigator’s Observation: Verified: The job has not been completed in its entirety at this point. The paint work is not finished, clean up is not complete, the tennis court surface is not complete and has areas of cracking and peeling to be corrected. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC.

ROC issued to Respondent a Citation dated August 18, 2020, through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Bierma testified to the effect that there was paint peeling from the tennis court and that the painting of the wall and fence were not complete. Mr. Bierma acknowledged that there was overspray from the wall and fence painting, which would typically be cleaned up at the end of a project. But he was also of the opinion that trees and bushes that had overspray on them should have been covered before painting.

Mr. Gonzalez provided unrebutted testimony to the effect that the problems Mr. Bierma identified with the tennis court were the result of the work that Mr. Hernandez performed under his own contract with Mr. Tabassian.

The parties dispute what happened after ROC issued the Directive to Respondent. Mr. Gonzalez testified to the effect that he made eight calls to Mr. Tabassian, but was connected to voicemail each time. Mr. Tabassian testified to the effect that he had received only two calls from Respondent and that Respondent immediately hung up each time.

The parties had a meeting shortly before the Directive was due to expire, so Mr. Bierma extended the deadline by one week. Because no corrective work was performed, ROC issued the Citation.

Mr. Gonzalez provided credible and unrebutted testimony to the effect after ROC’s Directive was issued, the parties could not come to agreement as to what would be required to comply with that Directive. Mr. Gonzalez testified to the effect that Mr. Tabassian was requesting that the project be completed to standards akin to that which would result from the $14,000 scope of work, whereas Respondent’s positon was to the effect that the Directive required only the cosmetic, low-cost work the parties agreed to, unless they agreed to enter a change order at that time.

Through an email dated July 21, 2020, Mr. Bierma informed Respondent that ROC would not get involved in a dispute about how the work should be corrected and that if the parties did not agree on that point, the only option would be to allow the parties to present their cases to an administrative law judge.

Mr. Gonzalez acknowledged that Mr. Tabassian had not barred Respondent from the property after the Directive was issued.

Mr. Tabassian testified to the effect that Respondent had painted the tennis court with an interior latex paint. Respondent acknowledged using that paint on the wall, but presented credible evidence showing that it had not been used on the tennis court, and Mr. Gonzalez presented unrebutted testimony showing the that paint that it had used was appropriate for the tennis court.

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:

*****

3. Violation of any rule adopted by the registrar.

*****

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).

In his complaint, Mr. Tabassian alleged that Respondent abandoned the project. But the facts show that Respondent’s employee, Mauricio Hernandez, was working on the project when Mr. Tabassian contracted directly with Mr. Hernandez for work that was not within the scope of the contract with Respondent. When Mr. Gonzalez learned of this and Mr. Hernandez indicated that he would not perform any more work, Mr. Gonzalez discussed with Mr. Tabassian putting together a plan to complete the work, but soon thereafter Mr. Tabassian filed his complaint.

Before Respondent completed its work, Mr. Tabassian, without the knowledge and approval of Respondent, paid Mr. Hernandez to perform work on the project. As such it has not been proven that Respondent violated Ariz. Admin. Code section R4-9-108(A). See Ariz. Rev. Stat. § 32-1155(D)(2).

Although Respondent did not comply with ROC’s Directive in the time allotted, its failure to do so was justified because the parties were not in agreement regarding what ROC was requiring Respondent to do. Consistent with Mr. Bierma’s advice to allow the matter to go to hearing, Respondent was justified in not performing any corrective work at the site. It has not been proven that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

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 2020-02516 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, November 23, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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