ALJDEC decisions subject to certification as final

2020A-02650-CHC-ROC · Registrar of Contractors · 2021-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Paul Jenkins,

COMPLAINANT

Desert Dog Contracting LLC,

License No. ROC 320763,

RESPONDENT

No. 2020A-02650-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 8, 2021

APPEARANCES: Steven Paul Jenkins on his own behalf; Kendra Walker appeared for Respondent but left the hearing before the evidence was taken

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 21, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on February 22, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Desert Dog LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(3) and (A)(22).

Respondent holds license No. 320763 issued by ROC. Kendra Walker is Respondent’s qualifying party and a member of the LLC.

Complainant is Steven Paul Jenkins.

The matter was continued and the hearing was convened on April 21, 2021. Because neither party had file a disclosure statement, the parties agreed that the matter should be continued again. The matter was then set to convene on May 18, 2021.

On May 4, 2021, Respondent requested a continuance providing that events relating to her son’s graduation would be occurring on May 18, 2021. Complainant did not file any response and Respondent’s motion was granted, with the matter rescheduled to convene on July 8, 2021.

On July 7, 2021, Respondent requested another continuance providing that her son’s graduation ceremony had been rescheduled to occur on the morning of July 8, 2021.

The matter was convened as scheduled on July 8, 2021, at which time Ms. Walker and Mr. Jenkins were both present remotely. Ms. Walker clarified that the ceremony had been scheduled to occur the afternoon of July 8th, but was reset for that morning, and she explained that she was at the ceremony and was not willing to miss the event.

Mr. Jenkins objected to the motion to continue, based on the length of time the matter had been pending and because Ms. Walker’s basis for the requested continuance appeared to be the same as her reason for continuing the May 18th date.

Respondent’s motion was denied, Ms. Walker left the hearing, and the matter was conducted in her absence.

Mr. Jenkins and ROC investigator Beau Cruz testified.

On or about October 1, 2019, Complainant and Respondent entered a contract that called for Respondent to construct a house for Complainant.

On April 17, 2020, Complainant filed with ROC a complaint against Respondent alleging abandonment and poor work by Respondent.

On June 29, 2020, ROC’s Mr. Cruz conducted a jobsite inspection.

On July 6, 2020, ROC issued to Respondent its first Directive through which ROC ordered Respondent to correct by appropriate means complaint items 3, 4, 6, 7 and 9. Through the July 6th Directive, ROC informed the parties that complaint items 1, 2, 5, 8, 10, 11, 12, 13, 14, 15 and 16 did not require correction.

On July 14, 2020, ROC issued to Respondent a second Directive that shows it was to replace ROC’s first Directive.

ROC’s investigators will not go on roofs based on concerns for liability and the potential for damaging tile. As such, Mr. Cruz had recommended that Complainant have an independent contractor evaluate the roof.

On August 11, 2020, Complainant had Southwest Roofing Consultants inspect the roof. Southwest determined that there were a number of deficiencies. Mr. Cruz would testify to the effect that he found Southwest’s report to be convincing, that he was able to observe some of the problems Southwest had identified from the ground during his own investigation, and that Respondent was subsequently ordered to make corrections to the roof.

On August 29, 2020, ROC accepted from Complainant an addendum to his complaint.

On October 30, 2020, ROC issued to Respondent a third Directive that also shows it was to replace ROC’s first Directive. Through its third Directive, ROC ordered Respondent to correct by appropriate means complaint items 3, 4, 5, 6, 7 and 9, and addendum items 1, 2, and 3.

Through its third Directive, ROC ordered Respondent to provide it with proof that it had made the corrections by 5:00 p.m. on November 13, 2020.

On November 20, 2020, Mr. Cruz conducted a compliance jobsite inspection at which he found that Respondent had not corrected complaint items 3, 4, 8 or 9, or addendum items 1, 2, or 3, and that Respondent had partially corrected complaint item 7.

ROC issued to Respondent a Citation dated November 25, 2020, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(3) and (A)(22).

At the hearing, Mr. Cruz testified to the effect that he was of the opinion that the items he had previously identified as workmanship violations were such.

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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2. Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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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 provides in part:

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

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).

The preponderance of the evidence shows that Respondent violated section 32-1154(A)(2)(a).

The preponderance of the evidence shows that Respondent violated section R4-9-108(B) with respect to complaint items 3, 4, 5, 6, 7 and 9, and addendum items 1, 2 and 3, which are violations of section 32-1154(A)(3).

It has not been proven Respondent violated section R4-9-108(C).

The preponderance of the evidence shows that Respondent did not comply with ROC’s third Directive within the time ordered, which is a violation of subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes as charged, ROC has authority to discipline its license.

RECOMMENDED ORDER

IT IS RECOMMENDED that Respondent Desert Dog LLC’s license number 320763 be suspended for one day and that it be assessed a civil penalty of $100.

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, July 26, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000