ALJDEC decisions subject to certification as final

2021A-05229-CHC-ROC · Registrar of Contractors · 2022-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kimberly Drabik ,

COMPLAINANT

Surface Select Construction Inc

License No. ROC 282405,

RESPONDENT

No. 2021A-05229-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 15, 2022

APPEARANCES: Kimberly Drabik on her own behalf; Patrick Nance for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 11, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on March 15, 2022.

Through its Notice of Hearing, ROC alleges that Respondent Surface Select Construction Inc. may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3) and (A)(12).

Complainant Kimberly Drabik appeared and testified, and also presented the testimony of Greg McClanahan.

Respondent holds license No. 282405 issued by ROC. Patrick Nance appeared and testified for Respondent.

As of the hearing date, ROC’s website shows that Respondent’s license was revoked, that it had been disciplined in seven cases, and that there were nine open cases.

In January 2021, Complainant and her husband entered a contract with Respondent that called for Respondent to perform site preparation and other work a property on which the Drabiks intended to place a manufactured home.

Mr. McClanahan works for the manufactured home supplier, Homes Direct that had recommended Respondent.

The contract price was $119,542 and the Drabiks put down a deposit of $62,761.50 in the form of a cashier’s check that was deposited to Respondent’s account.

Respondent was slow to prepare the pad, which led to a delay in the delivery of the Drabiks’ home.

As of October 2021, Respondent had completed very few, if any, of the additional tasks it had agreed to perform. On or about October 15, 2021, Complainant filed with ROC a complaint alleging repeated delays in the work, lies, and lack of communication.

On November 23, 2021, ROC’s Jason Simpson conducted a jobsite inspection at which time he determined that Respondent had not performed work it had agreed to complete.

ROC issued to Respondent a Citation dated December 23, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3) and (A)(12).

Respondent filed an answer in which Mr. Nance asserted that Respondent had been the victim of fraud perpetrated by Ryan Christensen and that he (Mr. Nance) had no knowledge of this particular job.

Complainant provided credible evidence however that Mr. Nance had been included in correspondence related to the project. Mr. McClanahan provided credible testimony that he had contacted Mr. Nance on Complainant’s behalf, at which time Mr. Nance requested that Mr. McClanahan include Mr. Christensen in all communications that Mr. McClanahan had with Mr. Nance, but there was no additional communication after that.

At the hearing, Mr. Nance testified that Mr. Christensen was not an employee, but to the effect that Respondent had been paying him as a “1099” employee, and that Respondent was relying on Mr. Christensen’s expertise.

The evidence at hearing showed that preparing the pad was the only task Respondent had completed.

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).

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:

Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

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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.

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

Ariz. Rev. Stat. section 32-1158 sets out the minimum elements of a contract.

Respondent took a substantial deposit from Complainant with that money being deposited in Respondent’s account. The evidence also shows that Mr. Nance was aware of the project and that Respondent was paying Mr. Christensen. Consequently, Respondent’s assertion to the effect that it was a victim of Mr. Christensen, even if true, does not provide a valid defense to Respondent’s failure to perform on the contract.

The preponderance of the evidence shows that Respondent abandoned its contract or refused to perform without legal excuse, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

It has not been proven that Respondent violated Ariz. Rev. Stat. sections 32-1154(A)(3) or (A)(12).

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).

Respondent’s license should be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors revoke Respondent Surface Select Construction Inc.’s license number 282405.

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, March 15, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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