ALJDEC decisions subject to certification as final
2021A-02248-CHC-ROC · Registrar of Contractors · 2022-04-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brett Brawley ,
COMPLAINANT
v.
Benchmark Builders LLC
License No. ROC 285142,
RESPONDENT
No. 2021A-02248-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: April 12, 2022
APPEARANCES: Brett Brawley on his own behalf; no one appeared for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On October 26, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on December 7, 2021 at the Office of Administrative Hearing.
The matter was continued and was scheduled to convene at 9:00 a.m. April 12, 2022. No representative for Respondent Benchmark Builders LLC appeared and the matter was convened in its absence at about 9:16 a.m.
Through its Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), and (A)(22).
Complainant Brett Brawley appeared and testified on his own behalf. ROC investigator David Thomas also testified.
Respondent holds license number 285142.
Respondent built a house in Cottonwood that Mr. Brawley purchased from Rodney J. Vincent Jr. and Stacey Vincent.
Rodney J. Vincent is Respondent’s qualifying party and a member of the LLC. The purchase contract shows that the sale included a two-year ROC builder’s warranty.
On or about May 20, 2021, Mr. Brawley filed with ROC a complaint against Respondent in which he alleged twenty-five deficiencies.
On June 23, 2021, ROC’s Mr. Thomas conducted a jobsite inspection.
On August 9, 2021, ROC issued to Respondent a Directive that provides in part:
WRITTEN DIRECTIVE FROM THE REGISTRAR
*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on . August 26th, 2021.
***
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Final inground pool inspection never completed needs to be completed by 06/03/2021.
Investigator’s Observation: This complaint item is verified. A check of the Yavapai County Planning and zoning site revealed last pool inspection failed due to five(5) items as follows- 1 Pool barrier must be intact. 2 Both gates must have padlocks 3 Pool pump requires GFCI protection. 4 Label circuits properly at subpanel. 5 Label pump switch at
equipment area. Respondent shall correct by appropriate means.
Governing Rule: 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 - Build wall on neighbors property, continued to say he called to get it fixed but the worker has not heard from contractor (several weeks running) unable to produce accurate records. land survey performed by neighbors
Investigator’s Observation: This complaint item is verified. Survey Provided by neighbor, shows CMU wall is two feet plus on the neighbors land. 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 - see page 8 of contract multiple items not completed agreed punch list post escrow not rectified.
Investigator’s Observation: Complaint item on punch list that is verified is the CMU wall not completed with stucco finish. Respondent shall correct by appropriate means in conjunction with item #2.
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 - drywall cracked
Investigator’s Observation: This complaint item is verified. #2 bedroom corner bead area drywall appeared to be applied too thick. cracking as it dried. 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 - Garage wall need drywall paint touch up
Investigator’s Observation: This complaint item is verified. Garage has area that had drywall compound applied but not finished. 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 - Master bath 3 drawer different color than the rest.
Investigator’s Observation: This complaint item is verified, Right side drawer bank is painted with satin paint. should match other cabinets that are flat paint. 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: 13 - Kitchen cabinets touch up paint is needed
Investigator’s Observation: This complaint item is verified. Multiple areas of kitchen cabinets have areas of paint that has chipped. 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: 14 - Back door touch up paint front and back
Investigator’s Observation: This complaint item is verified. Back double door partition needs touch up paint. 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: 17 - grey tiled bathtub missing toilet screw caps at guest suite
Investigator’s Observation: This complaint item is verified. Guest suite toilet missing mounting bolt caps. 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: 19 - Tempered glass is needed on kitchen sink window
Investigator’s Observation: This complaint item is verified. Contact with Yavapai County building Official stating window within two feet of door must be tempered glass. 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: 21 - Patio door right not locking into hole
Investigator’s Observation: This complaint item is verified. Locking lug does not align into hole at top of door frame. locking plate missing for door frame. 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: 23 - Loose tile throughout the house, one already cracked from walking on it
Investigator’s Observation: This complaint item is verified. Multiple loose or cracked tiles throughout house .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 concluded that Mr. Brawley’s remaining allegations did not require correction or action on Respondent’s part.
Respondent did not complete any of the work ROC ordered it to complete.
ROC issued to Respondent a Citation dated September 21, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), and (A)(22).
At the hearing, Mr. Thomas provided credible testimony to the effect that the compliance items listed in ROC’s Directive as requiring correction were in violation of the applicable statutes or rules.
Mr. Brawley has paid another contractor to repair some of the items listed in ROC’s Directive.
Mr. Brawley has received two bids to have the deficient tile work and block wall removed and replaced. One bid is for $46,919.40 and the second is for $55,876.09.
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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2. Departure from or disregard of:
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(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
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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....
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 [Ariz. Rev. Stat. 32-1154] subsection A, paragraph 22.”
The preponderance of the evidence shows that Respondent has violated 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 shows that Respondent’s work violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b) and (A)(22).
Because Respondent has violated the applicable statutes, ROC has authority to discipline its license.
Considering the facts of this matter, including that Respondent failed to appear for the hearing, a five day suspension and a $500 civil penalty is appropriate.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar suspend Respondent Benchmark Builders LLC’s license number 285142 for five days and impose against Respondent a civil penalty of $500.
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 14, 2022.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary