ALJDEC decisions subject to certification as final

2020A-04655-CHC-ROC · Registrar of Contractors · 2021-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carlos M Cortes Alonso,

COMPLAINANT

Teal Design Build Inc,

License No. ROC 318224,

RESPONDENT

No. 2020A-04655-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 3 and March 24, 2021

APPEARANCES: Carlos M. Cortes Alonso on his own behalf; Rudy Crum for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On December 30, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on February 3, 2021 at the Office of Administrative Hearing.

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

Respondent Teal Design Build Inc. holds license No. 318224 issued by ROC. Rudy Crum is Respondent’s owner.

Complainant is Carlos M. Cortes Alonso.

The matter was convened on February 3, 2021, and concluded on March 24, 2021.

Complainant and Respondent entered a contract that called for Respondent to perform work including constructing a fountain at Complainant’s house.

Complainant filed with ROC a complaint against Respondent alleging abandonment and poor work on Respondent’s part.

ROC investigator Steve Klein conducted a jobsite inspection on October 16, 2020.

On October 26, 2020, ROC issued to Respondent a Directive through which ROC ordered Respondent to remedy by appropriate means a number of workmanship deficiencies. Among these was a requirement for Respondent to obtain the required permit.

The Directive required Respondent to provide ROC with proof that these deficiencies had been corrected prior to 5:00 p.m. on November 10, 2020.

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

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

On February 3, 2021, Complainant testified to the effect that he had collected on Respondent’s bond, which was sufficient to cover his damages. Complainant added that he was continuing to pursue the hearing process because he did not want other consumers to experience the problems that he did. On March 23, 2021, Complainant confirmed that the bond payment had made him “whole.”

On March 23, 2021, Mr. Crum acknowledged that Respondent’s work had been deficient.

Respondent asserted however that it had been denied access during to make the required repairs. Respondent also testified as to delays in obtaining the required permit.

Respondent testified to the effect that it had been licensed for fifteen years without any prior complaints.

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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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.

(Underscore added.)

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).

Respondent acknowledges that its work was deficient and the preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Although Respondent did not comply with ROC’s Directive within the time ordered, that Directive provided Respondent only fourteen days and seventeen hours to comply, and not at least fifteen days as required by Ariz. Rev. Stat. section 32-1154(A)(22). Consequently, it has not been shown that Respondent violated subsection 32-1154(A)(22).

Because Respondent has committed a workmanship violation, ROC has authority to discipline its license. In this case however, no discipline is warranted because Complainant acknowledged that he collected on Respondent’s bond and was made whole prior to the hearing being convened.

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final Order in this matter case number 2020-04655 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, April 9, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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