ALJDEC decisions subject to certification as final

2021A-03383-CHC-ROC · Registrar of Contractors · 2021-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey M Serafini ,

COMPLAINANT,

v.

Patrick Lawler Forrest

dba Forrest Construction

License No. ROC 142146,

RESPONDENT.

No. 2021A-03383-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 10, 2021 at 1:00 PM.

APPEARANCES: Jeffrey Serafini (“Complainant”) appeared on his own behalf with Shawn Serafini as a witness. Christopher Fultz appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Patrick Forrest appeared on behalf of Forrest Construction (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On January 26, 1999, the Registrar issued License No. 142146 for General Residential B contracting to Respondent. Respondent’s address of record for the license is 28560 N. 173rd Ave. Surprise, AZ 85387. Patrick Lawler Forrest is listed as the Qualifying Party and Owner on the license.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 142146, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through January 31, 20221. The license is in good standing and has not been previously disciplined. There has been one settled or otherwise resolved complaint against the license. The record reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $9,000.00 surety bond for the license issued through Platte River Insurance Company, effective June 08, 2015.

On July 20, 2021, the Registrar received Complaint 2021-03383 filed by Complainant alleging abandonment and poor workmanship of a newly built residence. Specifically, Complainant expressed dissatisfaction with the home’s sliding glass doors, ceiling joints, dryer vent termination cap, concrete, door frames, drywall, and grout. Attached to the complaint was a written explanation regarding the sale of the property, and a Purchase Agreement.

On August 11, 2021, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on August 19, 2021, at 10:00 a.m.

On August 19, 2021, Registrar investigator Chris Fultz (“Investigator Fultz”) reviewed the Purchase Agreement, inspected the work that had been done on the project to date, and took 14 photographs of the project. When he was finished, Investigator Fultz drafted Jobsite Inspection Notes. Ultimately, Investigator Fultz substantiated 5 of Complainant’s 7 complaint items. Specifically, Investigator Fultz found that complaint items 1-2 and 5-7 were in need of remediation by Respondent.

On August 31, 2021, Investigator Fultz issued a Written Directive from the Registrar (“Directive”) to Respondent based on the workmanship allegations he substantiated during his jobsite inspection. Respondent was put on notice that he had until 5:00 p.m. on September 24, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On September 29, 2021, Investigator Fultz escalated Complaint 2021-03383 to the Registrar’s legal department with a Citation Recommendation.

On October 04, 2021, the Registrar issued a Citation to Respondent for alleged violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a). Respondent was given until October 19, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On October 14, 2021, the Registrar received Respondent’s Answer. According to Respondent, the tumultuous nature of the parties’ relationship stemmed, in large part, due to Complainant’s behavior. Specifically, Respondent alleged that Complainant would make numerous appointments for corrections and cancel them, praise Respondent’s corrective work only to complain days later, verbally harass subcontractors to the point they refused to work on the project, and refuse to let Respondent perform corrective work in a manner he derived. Respondent argued that he tried to adhere to the Directive, but was precluded from doing so because Complainant refused to accept his proposed solutions.

On October 25, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 10, 2021. Per the November 10, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Hearing Evidence

Complainant testified on his own behalf, called Shawn Serafini and Investigator Fultz as witnesses, and submitted Exhibits D1, S1, S3, V1, and P16-18 into the record. Respondent called Patrick Forrest as a witness. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 29931 N. 164th Dr. Surprise, AZ 85387.

On or about June 30, 2020, Complainant entered into a $548,000.00 residential property purchase agreement with R. Gregory & C. Rebecca Childs Revocable Living Trust for the sale of a new construction.

Under the Warranties Clause of the agreement, Complainant, as the buyer, agreed that the premises was being sold “in its present physical condition” as of the date of the contract acceptance.

At the time of the sale, the home was still under construction by Respondent; having originally been commissioned for build by Greg Childs. Work on the project began in or around late-2019 and was completed about a year later. Escrow closed on November 24, 2020, and Complainant took possession of the property on November 27, 2020.

When Complainant moved-in to the residence there were still some outstanding punch-list items that needed to be addressed by Respondent. There were delays and errors in communication, however, because Complainant submitted his complaints to Mr. Childs, who in turn provided them to Respondent and relayed Respondent’s answers back to Complainant.

Ultimately, the crux of the parties’ quarrel was the means by which Respondent would to address them. Complainant admitted to being “worried” about Respondent’s “work product.” Because the parties could not agree, Complainant filed a complaint with the Registrar.

On August 30, 3031, Complainant obtained an opinion from AZ Xtreme Glass & Mirror that the sliding glass doors needed to be reinstalled due to product damage sustained during shipment and/or manufacturing defects.

Respondent declined to provide a closing argument.

In closing, Complainant argued that he made reasonable attempts to work with Respondent, but felt “stonewalled.” Per Complainant, he just wanted the home he bought to be in accordance with industry standards.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”

The substantive facts of record are clear.

It is clear from the record that the underlying sale of real property was completed while the residence was still under construction. Complainant did not take possession until approximately 5 months later. Notwithstanding the Purchase Agreement’s Warranties Clause, both parties agree that there were several punch-list items outstanding at the time Complainant took possession of the home. To that end, it is clear that the Registrar substantiated at least 5 of those items for remediation by Respondent.

Therefore, the only issue in dispute is whether Respondent raised an affirmative defense for failing to complete the project in a professional and workmanlike manner.

Here, Complainant admitted to precluding Respondent from attempting his choice of corrective repairs due to being worried about the outcome of Respondent’s work product. Complainant’s preclusion(s) are tantamount to a denial of access. While it is true that Complainant was not legally required to permit Respondent to enter the project site or authorize corrective work of any kind, Complainant did effectively waive his right to a workmanship claim against Respondent by depriving Respondent of an opportunity to correct the deficiencies in the work at issue – which Respondent has successfully raised as an excuse/affirmative defense.

The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the issuance of discipline against their license. In the case at bar, Respondent has presented sufficient proof to establish a lack of opportunity.

Therefore, because there is insufficient evidence in the record to hold Respondent in violation of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a) by a preponderance of the evidence, no grounds exist for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complainant’s appeal be dismissed.

IT IS FURTHER RECOMMENDED that Complaint 2021-03383 be closed.

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 will be 40 days from the date of that certification.

Done this day, December 30, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors