ALJDEC decisions subject to certification as final

2021A-00512-CHC-ROC · Registrar of Contractors · 2021-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nicole Marie Jones ,

COMPLAINANT

Fishbone LLC

License No. ROC 274929,

RESPONDENT

No. 2021A-00512-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 21, 2021

APPEARANCES: Nicole Marie Jones on her own behalf; Derrell Webb for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 11, 2021 the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 21, 2021 at the Office of Administrative Hearing.

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

Respondent holds license No. 274929 issued by ROC. Derrell Webb, a member of Respondent’s LLC appeared and testified for Respondent.

Complainant is Nicole Marie Jones, who appeared and testified on her own behalf.

ROC investigator Daniel Edwards also testified.

Neither party filed a disclosure statement as required by Ariz. Admin. Code section R4-9-118.

On or about February 3, 2021, Ms. Jones filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

ROC investigator Mr. Edwards conducted a jobsite inspection on March 11, 2021.

On March 23, 2021, ROC issued to Respondent a Directive that required Respondent to remedy by appropriate means Compliance Items 3, 7, 11, 12, 13, 15, 16, 17, and 20. ROC determined that the other items listed in Ms. Jones’s complaint did not require correction.

The Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. April 22, 2021.

On April 27, 2021, Mr. Edwards conducted a compliance jobsite inspection at which time his opinion was that Compliance Items 11, 16, 17 and 20 had been corrected, Compliance Items 3 and 7 had been partially corrected, and that Compliance Items 12 and 15 were not corrected.

At the compliance jobsite inspection, Respondent requested additional time to complete the corrective work that ROC had ordered it to complete, but ROC refused to extend the deadline.

Respondent continued to make repairs and on July 13, 2021, Mr. Edwards conducted a prehearing inspection at which time only Compliance Item 15 had not been corrected.

Compliance Item 15 was to the effect that a cabinet door could not be fully opened because it made contact with a tile curb. This problem did not exist when the original construction was completed and occurred only after a subcontractor rebuilt the shower.

Mr. Webb, Mr. Edwards provided his opinion that the cabinet hitting the tile curb was a workmanship issue and not a design flaw because the problem did not exist before Respondent’s subcontractor rebuilt the shower.

As of July 13, 2021, Respondent had made corrections to the cabinet at issue, but its subcontractor had damaged two drawer or cabinet fronts. In addition, as of that date, the cabinet door would impact the shower glass if opened beyond 90 degrees, a drawer was binding, and there may have been a gap at one or more drawers, all of which were the result of the repairs made to correct the original problem.

Respondent’s subcontractor had the replacement doors and was scheduled to replace those at 2:30 p.m. on the date of the hearing. The subcontractor was also prepared to install a bumper or a new hinge to prevent the door from hitting the tile and to adjust the drawer that was binding.

Respondent was also willing to repair any gaps at the drawers, but Mr. Webb was not certain as to whether that repair could be fully completed at the time the other repairs were made.

Mr. Webb provided credible testimony that the issues remaining to be corrected were not uncommon. Mr. Edwards agreed that if properly performed, Respondent’s proposed corrections would be acceptable methods to fix these issues.

Mr. Webb provided credible testimony that Respondent was ready, willing and able to make any required repairs.

Ms. Jones testified to the effect that the Joneses had been patient and accommodating as Respondent made repairs, which included being available on short notice, but Respondent had not timely completed all the repairs that were necessary, which is why she filed her complaint with ROC.

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).

There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified, or financially irresponsible.

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.

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).

The preponderance of the evidence shows that Respondent did violate Ariz. Admin. Code section R4-9-108(a), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3). The preponderance of the evidence also shows however that all the workmanship deficiencies had been completed except Compliance Item 15 and that was scheduled to be repaired on the day of the hearing.

The preponderance of the evidence shows that Respondent did not complete the repairs ROC ordered it to complete in the time ROC allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Because Respondent has violated sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license. In this case however, no discipline is warranted because the deficiencies identified were for the most part minor in nature, after ROC’s Directive expired Respondent continued to make good faith efforts to correct any work that required correction, and Respondent was ready, willing and able to make any corrections that had not been made before the hearing.

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2021-00512 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

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-137160-45720000Done this day, July 28, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000