ALJDEC decisions subject to certification as final

2020A-02577-CHC-ROC · Registrar of Contractors · 2021-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Wahl,

COMPLAINANT

Imperial Pools And Design LLC,

License Number ROC 316814, 330910,

RESPONDENT

No. 2020A-02577-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 18, 2021

APPEARANCES: Michael Wahl on his own behalf; Bernardo M. Velasco, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On December 2, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 8, 2021 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on February 18, 2021.

Through the Notice of Hearing ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16) and (A)(22).

Patrick Crone is Respondent’s qualifying party and a member of the LLC. Respondent holds license numbers 316814 and 330910.

Complainant is Michael Wahl.

On or about May 30, 2019, Respondent and Mr. Wahl entered a contract in which Respondent was to build a pool and spa and block wall at Mr. Wahl’s house.

On or about May 25, 2020, Mr. Wahl filed with ROC a complaint against the Respondent alleging poor work on Respondent’s part.

ROC’s Arlo Houston conducted a jobsite inspection on July 9, 2020.

As identified by ROC, Mr. Wahl’s complaint consisted of twenty-eight issues or allegations. Mr. Houston’s opinion was that some, but not all, of Mr. Wahl’s allegations were violations of the workmanship standards and that Respondent had installed a gas line which was beyond the scope of Respondent’s KA-6 license (number 316814).

As of the hearing date, Respondent had received its license number 330910, which is a Class B general residential license under which Respondent is authorized to run gas lines.

ROC issued to Respondent a Directive dated July 31, 2020, through which ROC ordered Respondent make repairs and provide ROC with proof of compliance by 5:00 p.m. on September 4, 2020.

On September 8, 2020, Mr. Huston conducted a compliance jobsite inspection at which time he determined that some of the items that ROC had ordered Respondent to repair had been corrected, but others had not.

ROC issued to Respondent a Citation dated September 22, 2020 through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

As of the hearing date, only one item remained uncorrected. That item involved tile work at or around the spa. Respondent had hired Foley Tile LLC to make those repairs and Foley Tile had performed work at the site. Respondent has filed a complaint with ROC alleging that Foley Tile had abandoned the project. Mr. Foley appeared and testified for Mr. Wahl, during which he stated that he was not running away from the project. Because Respondent had an outstanding complaint related to Foley Tile’s work, Respondent was effectively prevented from correcting that work until after ROC conducted its inspection, which had not occurred as of the date of this hearing.

During Mr. Wahl’s cross examination of Mr. Crone, Mr. Wahl raised the issue of Respondent’s disciplinary history with ROC. Although Mr. Crone did not have an exact count, he did not disagree that as of the hearing date, Respondent had four open complaints, had resolved ten, and had been disciplined three times.

Mr. Crone subsequently testified to the effect that Mr. Wahl had vowed to drive Respondent out of business and that he was getting people to file complaints against Respondent’s license. As a result, Respondent was “giving” stuff away to appease customers who had filed complainants as a result of Mr. Wahl’s efforts.

Mr. Wahl did not dispute that he had made a vow to put Respondent out of business, and the only response he made to that allegation was to question whether he had contacted all of these people directly as opposed to some of them responding to his posting on Google.

ROC’s substantive policy statement 2017.01 sets out the following pertinent information:

Abuse of the Administrative Process

The Registrar of Contractors relies on complaints to carry out some of the mandates of the office. When anyone attempts to use the complaint process inappropriately, it undermines the Registrar’s ability to perform the duties that the citizens of Arizona depend on to ensure that the buildings in which they live, work, and play are safe. When that process is compromised, it is appropriate to dismiss the complaint in its entirety.

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.

*****

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

*****

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).

Substantive policy statement means:

[A] written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only....

Ariz. Rev. Stat. § 41-1001(22).

The preponderance of the evidence shows that Mr. Wahl has abused the complaint process in an effort to drive Respondent out of business in violation of ROC’s SPS 2017.01. Consequently, although there is evidence to show that Respondent’s work may have violated the workmanship standards, and considering that as of the hearing date all items had been repaired with the exception of Foley Tile’s work, this matter should be dismissed in its entirety.

RECOMMENDED ORDER

IT IS ORDERED that Case number 2020-02577 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.

-54864001

001

-137160-45720000Done this day, March 10, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000