ALJDEC decisions subject to certification as final

2021A-00558-CHC-ROC · Registrar of Contractors · 2021-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Philippe Murat,

COMPLAINANT

Patterson Homes LLC,

DBA: Patterson Restoration,

License No. ROC 315545,

RESPONDENT

No. 2021A-00558-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 14, 2021

APPEARANCES: Philippe Murat on his own behalf; Andrew DiCarlo, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 7, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on July 14, 2021 at the Office of Administrative Hearing.

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

Respondent holds license No. 315545 issued by ROC.

Complainant is Phillipe Murat.

The parties entered a contract that called for Respondent to remodel and add an addition to Mr. Murat and his wife Regitze Murat’s house.

On or about February 8, 2021, Mr. Murat filed with ROC a complaint against Respondent alleging abandonment. Mr. Murat’s complaint listed seventeen specific allegations.

ROC investigator Steven Klein conducted a jobsite inspection on March 1, 2021.

Mr. Klein determined that the job was incomplete, but not abandoned, and he did not inspect the seventeen items that Mr. Murat detailed in his complaint. At the jobsite inspection, Respondent agreed to complete the work.

On March 1, 2021, ROC issued to Respondent a Directive that provided in part:

You are directed to remedy the following violations by the appropriate means:

The remodel is incomplete at the framing stage.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, local building codes and manufacturers[’] installation instructions.

ROC’s Directive listed the seventeen items from Mr. Murat’s complaint, but Mr. Klein testified that Respondent was not being directed to correct those seventeen items, none of which had been inspected, and one of which was a monetary dispute that ROC would not get involved in. Instead, ROC was directing Respondent to complete the project, which would have included work that was not listed.

ROC’s Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. March 25, 2021.

Mr. Klein explained that when issuing the Directive, he hoped that Respondent would make progress toward completing the project by ROC’s deadline, at which time he planned to see if Mr. Murat would withdraw his complaint.

On March 3, 2021, Respondent arrived at Mr. Murat’s house planning to drop off windows for the project. The Murats refused to take delivery because Respondent had not received from the attorney then representing the Murats permission to access the site.

Respondent made efforts to schedule work through the Murats’ attorney, but the attorney was uncooperative.

Because the work was not completed by ROC’s deadline, ROC issued to Respondent a Citation dated March 31, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Ms. Murat testified to the effect that the Murats refused delivery of the windows because they were supposed to be there in January, she did not believe they were the correct windows, and because the Murats were of the opinion that Respondent was to complete no additional work until the seventeen enumerated complaint items were corrected.

Respondent provided evidence to the effect that it wanted to get the windows installed because it wanted to get the house dried in. This was important at least in part because the parties had a dispute as to whether Respondent was responsible for water damage to kitchen cabinets that an unlicensed contractor had installed in the house.

Mr. Murat’s position is that Respondent should have closed off the roof, which is where water intruded from. Respondent’s position is that it was still working on the roof at the time the water did intrude and that it was not uncommon for water to enter a house under construction.

At one point Respondent had requested information as to what it would cost for the cabinet installer to replace the damaged cabinets, with the possibility of paying for that work. Respondent learned however that the cabinet installer was not licensed.

At least some of the plumbing and electrical may have been altered before ROC’s jobsite inspection.

Respondent argues that it had been fired from the job, but its witness testified that Respondent had not been denied access between January 15, 2021 and ROC’s jobsite inspection.

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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1155(D) provides that ROC may not cite a contractor for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if the contractor’s work has been modified.

Findings of Fact are limited to issues that have been properly noticed. Ariz. Rev. Stat. § 41-1092.07(F)(6). Consequently, the matter is limited to the issues raised in Mr. Murat’s complaint and may not be expanded to include other instances of alleged deficient work.

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).

It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Admin. Code section R4-9-108(A). Mr. Klein acknowledged that he had not actually inspected the alleged workmanship violations and his opinion was to the effect that the work was incomplete, not defective. Consequently, it has not been proven that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(3).

Although Respondent did not comply with ROC’s Directive within the time ordered, it has shown that its failure to do so was justified and not a violation of subsection 32-1154(A)(22).

Respondent made good faith efforts to comply with the Directive, but Mr. Murat’s attorney was uncooperative in scheduling the work. In addition, the Murats were attempting to dictate how the work would be scheduled in their mistaken belief that Respondent was required to complete the seventeen items from the complaint before it completed any other work. In addition, Mr. Klein’s testimony shows that he did not expect Respondent to actually complete the project in the time ROC allowed.

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 2021-00558 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, 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