ALJDEC decisions subject to certification as final

2020A-03021-CHC-ROC · Registrar of Contractors · 2020-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pam Rudolph,

COMPLAINANT,

v.

Williams Construction & Consulting LLC,

License Nos. 314731 & 318013

RESPONDENT.

No. 2020A-03021-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 05, 2020 at 1:30 PM.

APPEARANCES: Pam Rudolph (“Complainant”) appeared one her own behalf with Bruce Rudolph as a witness. Rod Galarza, Esq. appeared on behalf of Williams Construction & Consulting LLC (“Respondent”) with Brian Williams as a witness. Randall Morris appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On February 08, 2018, the Registrar issued License No. 318013 for general B-3 residential remodeling and repair contracting to Respondent. Respondent’s address of record for the license is 3487 E. Hopkins Rd. Gilbert, AZ 85295-2120. Brian James Williams is listed on the license as the Qualifying Party and Member. Jaime Williams Jr. is also listed on the license as a Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 318013, as reflected on the Registrar’s public website on November 05, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through February 02, 2022. The license has not been previously disciplined.

On August 02, 2017, the Registrar issued License No. 314731 for general dual KA engineering contracting to Respondent. Respondent’s address of record for the license is 3487 E. Hopkins Rd. Gilbert, AZ 85295-2120. Brian James Williams is listed on the license as the Qualifying Party and Member. Jaime Williams Jr. is also listed on the license as a Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 314731, as reflected on the Registrar’s public website on November 05, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through August 31, 2021. The license has not been previously disciplined, however, there had been one prior complaint that had been resolved or otherwise settled with the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $14,000.00 surety bond for the license issued through RLI Insurance Company, effective June 30, 2017.

On June 22, 2020, the Registrar received a complaint filed by Complainant alleging poor work performance on a shower remediation project. Complaint No. 2020-03021 contained 8 complaint items. Attached to the complaint was a letter from Complainant which indicated, in pertinent part, that she was submitting a new complaint to the Registrar because her prior complaint had been dismissed without resolving her issue(s). Complainant also specifically requested that Registrar investigator Randall Morris (“Investigator Morris”) not be assigned to the complaint, as he had been assigned to her prior complaint and Complainant was dissatisfied with the outcome of his prior investigation.

On June 25, 2020, Investigator Morris provided written notice to the parties that he had been assigned to Complaint No. 2020-03021 by the Registrar’s Assistant Chief. Regarding Complainant’s allegation that Respondent, “brought illegal immigrants as well as unlicensed subcontractors onto our property.. We have absolute proof of this. We videotaped everything!” [sic] Investigator Morris requested that Complainant provided the alleged evidence of unlicensed contracting to the Registrar prior to the scheduling of a jobsite inspection. Investigator Morris further advised that the Registrar lacked jurisdiction over alleged immigration issues and therefore could not address that portion of Complainant’s complaint allegation.

On June 29, 2020, Investigator Morris issued a Jobsite Inspection Notification letter to the parties, advising he would conduct an onsite review at the project site on July 10, 2020, at 9:30 a.m.

On July 10, 2020, Investigator Morris inspected the work that had been done on the project to date and took 14 photographs of the project. When he was finished, Investigator Morris drafted Jobsite Inspection Notes.

On July 17, 2020, Investigator Morris issued a Written Directive from the Registrar to Respondent because he substantiated 3 of Complainant’s 8 complaint items that the work Respondent had done on the project failed to meet the Registrar’s minimum workmanship standards. Specifically, Investigator Morris substantiated complaint items 3-4 and 6. Respondent was put on notice that he had until 5:00 p.m. on August 04, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On August 11, 2020, escalated Complaint No. 2020-03021 to the Registrar’s legal department with citation recommendations.

On August 11, 2020, the Registrar issued a Citation and Complaint to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until August 26, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On August 26, 2020, the Registrar received Respondent’s Answer whereby Respondent denied all allegations of wrongdoing. Specifically, Respondent argued that all work was performed in a “professional and workmanlike manner,” and that Complainant’s allegations were more appropriate for civil court than an administrative hearing. Respondent also argued that it took “appropriate action to address Complainant’s concerns” and had “valid justification” under Ariz. Rev. Stat. § 32-1154(A)(22) for alleged noncompliance with the Registrar’s Directive.”

On September 02, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on October 16, 2020. Per the September 15, 2020, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108(a) which requires a contractor to “perform all work in a professional and workmanlike manner,” and thereby a violation of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(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.”).

Hearing Evidence

Complainant testified on her own behalf. Brian Williams and Investigator Morris testified on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant and her husband own residential property located at 1412 W. Temple Plaza Chandler, Arizona 85224.

On or about April 17, 2019, the parties entered into a contractual agreement whereby Respondent agreed to repair a broken pipe between Complainant’s shower and living room for the sum of 11,195.00.

Complainant paid Respondent $10,470.00 on the project.

On or about April 22, 2019, work on the project commenced.

On or about July 22, 2019, work on the project stopped.

On an unknown date Complainant submitted Complaint No. 2019-04667 to the Registrar, which was later dismissed.

On June 18, 2020, Complainant submitted a related complaint to the Registrar, Complaint No. 2020-03021, as a means to get the Registrar to address her grievances. Because Complaint No. 2020-03021 contained one or more complaint items that had been dismissed in Complaint No. 2019-04667, some of Complainant’s complaint items were dismissed by the Registrar. Additionally, because one or more complaint items were outside of the Registrar’s jurisdiction, they were also dismissed by the Registrar.

Although Complainant believed that Investigator Morris was biased because he “failed to act [Complainant’s] best interest,” the Registrar refused to remove him as the investigator assigned to Complaint No. 2020-03021.

Per the Directive Investigator Morris issued on July 17, 2020, Respondent had until August 04, 2020, to remediate substantiated complaint items 3, 4, and 6.

Respondent reported to the jobsite approximately 10 times during the compliance period. Respondent was not permitted to perform corrective work because the trades he brought to make corrections to the workmanship at issue would not comply with Complainant’s requests to provide proof of United States citizenship and licensure by the Registrar.

Complainant deemed Respondent’s trades’ refusal to comply with her requests as an acquiescence to her allegations that they were “illegals” and “unlicensed.”

Respondent has since remediated Complainant’s project to her satisfaction.

On August 11-12, 2020, and August 17-18, 2020, Respondent performed corrective work on the project.

On August 19, 2020, the project was completed.

No evidence was provided to the Registrar or this Tribunal in support of Complainant’s unlicensed contracting allegations.

In closing, Respondent argued that the Registrar’s Citation should be dismissed because complaint items 3, 4, and 6 have been completely remediated in a professional and workmanlike manner to Complainant’s satisfaction, and Respondent is excused from complying with the Directive ‘s compliance deadline because Complainant denied his access to the project site.

In closing, although Complainant conceded that all of the work at issue has been corrected, Complainant argued that her rights as a homeowner superseded Respondent’s right to access the project site, and the Registrar’s Directive could not force her to admit “unlicensed illegals” into her home to perform corrective work.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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.”

Complainant has not sustained her burden of proof in this matter.

The material facts in this case are clear.

The record establishes that some of Respondent’s work on Complainant’s bathroom remediation project fell-short of Complainant’s expectations, and as a result Complainant filed a workmanship complaint with the Registrar. However, because construction is not a perfect art, contractors generally must be afforded at least one opportunity to correct their deficient work before their licenses may be suspended or revoked. Here, Respondent established by a preponderance of the evidence that Complainant refused to provide reasonable access to allow Respondent to attempt to comply with the Directive issued in this matter prior to the expiration of its compliance deadline. Complainant presented no credible evidence to substantiate her allegation that Respondent brought unlicensed trades to perform corrective work on her project. Furthermore, Complainant’s repeated allegation that Respondent brought “illegals” as trades is also unfounded and outside the jurisdiction of both the Registrar and this Tribunal.

If Complainant had allowed Respondent reasonable access in this matter, and subsequently requested that Investigator Morris perform a compliance inspection, Investigator Morris may have soundly determined that some or all of Respondent’s repairs did not meet the Registrar’s minimum workmanship standards. However, per the evidentiary record, such a conclusion would be in error as the uncontroverted evidence establishes that Respondent was not afforded the period of time determined by the Registrar to remediate his work on Complainant’s project. Moreover, the record also establishes that the work at issue has been completed to Complainant’s satisfaction, though the Registrar has not had an opportunity to determine whether it satisfies its workmanship requirements.

Because no cause has been established for the Registrar to discipline Respondent’s contractor’s license under Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), or 32-1154(A)(22), it is appropriate to close Complaint No. 2020-03021 for denial of reasonable access.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complaint No. 2020-03021 against Respondent Williams Construction & Consulting LLC, ROC License No. 314731, shall be closed based on denial of access to perform repairs to comply with the Registrar’s July 17, 2020, Directive.

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 will be 40 days from the date of that certification.

Done this day, November 25, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors