ALJDEC decisions subject to certification as final

2021A-02176-CHC-ROC · Registrar of Contractors · 2021-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John D Price ,

COMPLAINANT

Impact Maintenance LLC ,

License No. ROC 330535,

RESPONDENT

No. 2021A-02176-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 9, 2021

APPEARANCES: John D. Price on his own behalf; Michael Kuenzi for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 7, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 9, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Impact Maintenance LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12), (A)(16), (A)(17) and (A)(22).

Respondent holds license No. 330535 issued by ROC. Michael Kuenzi, Respondent’s managing member appeared and testified for Respondent.

Complainant John D. Price appeared and testified on his own behalf.

ROC investigator David Thomas also testified.

Neither party submitted a disclosure statement.

In February 2021, Complainant and Respondent entered a contract that called for Respondent to perform remodeling work.

In March 2021, Respondent’s license was suspended.

Respondent began performing work in April 2021.

Complainant was not satisfied with the work and on May 14, 2021 he filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

On June 11, 2021, ROC’s Mr. Thomas conducted a jobsite inspection.

On July 21, 2021, ROC issued to Respondent a Directive that provides in part:

.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Aug 6th 2021.

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DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Washer / Dryer relocated, plumbing / elecltrical

Investigator’s Observation: This complaint item is verified. Respondent relocated plumbing water supply lines and DWV lines which is beyond the scope of the R-62 license.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Fridge door will not open do to opening.

Investigator’s Observation: This complaint item is verified. Respondent framed / finished an opening for a recessed refrigerator opening. The opening does not allow clearance to open the fridge doors. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Kitchen countertop is has chip, kitchen countertop on 45 not even

Investigator’s Observation: This complaint item is verified. Countertop chip at sink and at 45 degree miter. 45 degree miter no flush and aligned from front to back. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Poor job on texture on walls of kitchen

Investigator’s Observation: This complaint item is verified. where wall meets vaulted ceiling, drywall texture is poor and does not match existing and is visible. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Floor chips and not install right

Investigator’s Observation: This complaint item is verified. Multiple areas in the flooring when installed at the butt joints are starting to chip other areas the butt joint is not tight. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - We purchased new sink, workers washed tools out in sink now sink has scratches.

Investigator’s Observation: This complaint item is verified. Multiple large scratches observed in stainless steel sink. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - poor job on baseboard install, did not paint.

Investigator’s Observation: This complaint item is verified. Multiple areas of the baseboards have not been painted. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Med cabinets no caulking

Investigator’s Observation: This complaint is verified. Bathroom Medicine cabinet not caulked after install. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Paint sloppy no caulking, no primer, needs to be repainted

Investigator’s Observation: This complaint is verified. multiple areas of the remodel needs to be repainted as some Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 10 - texture in both bathrooms not correct, sloppy, see all seems, paint not right, caulking and primer need to be repainted and redone

Investigator’s Observation: This complaint item is verified. Drywall texture is uneven and does not match. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 11 - New kitchen cabinet have nicks on side panels, sloppy install bad cuts.

Investigator’s Observation: This complaint item is verified. Cabinet not installed square to the wall which reveals itself at the end of the countertop. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 12 - shower wrong size unit, refuse to replace, credit lost of 3250.00, shower has nicks still needs to be replaced.

Investigator’s Observation: This complaint item is verified. appears wrong size shower was placed into opening and / or rough framing for was framed wrong. Install shows the fiberglass shower is chipped / scratched. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ROC issued to Respondent a Citation dated September 9, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12), (A)(16), (A)(17), and (A)(22).

At the hearing, Mr. Thomas testified to the effect that Respondent performed work that did not comply with the workmanship standards; Respondent’s contract did not meet the statutory requirements found at Ariz. Rev. Stat. section 32-1158; Respondent performed plumbing work which was beyond the scope of its license; and Respondent did not comply with ROC’s Directive.

Mr. Thomas also testified that as of the hearing date Respondent’s license was still suspended.

At the hearing, Mr. Kuenzi acknowledged that Respondent had performed work when its license suspended and that it had contracted beyond the scope of its license.

Mr. Kuenzi testified that Respondent’s license had been suspended because it lost its qualifying party and he was unable to timely pass the required examination.

Respondent provided Complainant with a credit for the work it performed on Respondent’s shower.

Mr. Kuenzi characterized the other workmanship issues as punch list items and he estimated that these could be repaired for about $1000 to $1500, which would be Respondent’s cost. There was no evidence adduced to show that Mr. Kuenzi’s characterization was in error.

Mr. Kuenzi testified that Respondent could not correct its work because its license was suspended and that Mr. Price’s offer to settle the matter financially was too high considering what it would cost to repair the items at issue.

Mr. Kuenzi accepted responsibility for Respondent’s violations.

Mr. Price testified that prior to filing his complaint, he had had other contractors attempt to repair or complete Respondent’s work.

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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12. Failure in any material respect to comply with this chapter.

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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

17. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

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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....

Ariz. Rev. Stat. section 32-1158 sets out nine elements that must be set out in any contract between the owner of a property and the contractor.

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

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that “The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of subsection A, paragraph 22 of” subsection 32-1154(A).

The preponderance of the evidence shows that Respondent’s work did not meet the workmanship standards as set out in ROC’s Directive. Consequently, Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Mr. Thomas provided credible testimony that Respondent’s contract did not comply with Ariz. Rev. Stat. § 32-1158 and Respondent did not provide any evidence to the contrary. Consequently, Respondent has violated Ariz. Rev. Stat. § 32-1154(A)(12).

Mr. Kuenzi acknowledged that Respondent violated Ariz. Rev. Stat. sections 32-1154(A)(16) and (A)(17).

The preponderance of the evidence shows that Respondent has compensated Mr. Price for compliance item 12, the shower installation, but has not otherwise corrected the deficiencies that ROC through its Directive ordered Respondent to correct.

Although Respondent was prohibited from performing corrective work or hiring another contractor to perform that work while its license was suspended, ROC allows a contractor to comply with a directive by reaching a financial settlement with a complainant. Respondent failed to do so and has violated subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes, ROC has authority to discipline Respondent’s license.

Considering the facts of this matter, a two day suspension and a $250 civil penalty is appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar suspend Respondent Impact Maintenance LLC’s license number 330535 for two days and impose a civil penalty of $250.

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, November 19, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000