ALJDEC decisions subject to certification as final

2021A-05539-CHC-ROC · Registrar of Contractors · 2022-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Georgia G Martin,

COMPLAINANT,

v.

Christopher G Crowell

dba Crowell Drywall

ROC License No. 311858,

RESPONDENT.

No. 2021A-05539-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 30, 2022, at 9:00 AM.

APPEARANCES: Georgia Martin (“Complainant”) appeared on her own behalf. Christopher Crowell appeared on behalf of Crowell Drywall (“Respondent”). Lisa Melton appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On March 01, 2017, the Registrar issued License No. 311858 Specialty Dual CR-10 Drywall contracting license to Respondent. The license is currently active and renewed through March 31, 2023. Christopher Crowell is the Qualifying Party/Owner on this license. Respondent’s address of record for the license is 7913 W. Melinda Ln. Peoria, AZ 85382. Respondent has an active $6,750.00 surety bond on the licensed issued by Merchants Bonding Company effective February 17, 2017. There is no prior discipline noted for the license, save one open complaint which is presumably related to this matter.

On or about August 07, 2021, Complainant and Respondent entered into a $1,325.00 drywall and trim contract for Complainant’s kitchen and master bedroom. Per the parties’ agreement, Complainant was supposed to provide Respondent with a $700.00 down payment for the procurement of materials, and remit a balance of $625.00 to Respondent once the project was complete.

On October 29, 2021, the Registrar received a 16-item complaint from Complainant against Respondent’s License No. 311858 alleging poor workmanship and abandonment of their project. The Registrar designated it Complaint No. 2021-05539 and assigned to Lisa Melton (“Investigator Melton”) for investigation.

On November 15, 2021, Investigator Melton issued a Jobsite Inspection Notification Letter to the parties, advising that she would conduct an inspection of the project on December 14, 2021, at 9:00 a.m.

On November 15, 2021, Investigator Melton issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in his contracts, including his contract with Complainant.

On December 14, 2021, Investigator Melton conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. She also took 15 photographs of the project site. When she was finished, Investigator Melton drafted her Inspection Notes. Ultimately, after consolidating several complaint items, Investigator Melton substantiated 3 in total. Specifically, Investigator Melton determined that complaint items 2-4 failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective work to remediate the identified deficiencies.

On December 14, 2021, Investigator Melton issued a Written Directive from the Registrar (“Directive”) to Respondent because she substantiated some of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on January 04, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).

On January 12, 2022, Investigator Melton escalated the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On January 18, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until February 02, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On January 25, 2021, the Registrar received Respondent’s Answer whereby Mr. Crowell responded to each of Complainant’s original 16 complaint items, but did not address Investigator Melton’s jobsite inspection or Directive. In pertinent parts, Respondent argued as follows:

Mr. Crowell did not remove nor dispose of Complainant’s arcadia door.

Complainant agreed to drywall only because her desired paneling was unavailable.

Cutting drywall for the air-conditioning vent was not a part of the contract.

Complainant approved of Respondent’s texture work and baseboards, which is why she tendered final payment.

No Change Orders were executed because Complainant did not request any.

Mr. Crowell generally denied poor workmanship on Complainant’s project, damaging any of Complainant’s property, and failing to effectively and timely communicate with his client.

On February 07, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on March 30, 2022. Per the February 15, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

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

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf and called Investigator Melton as a witness. Christopher Crowell testified on behalf of Respondent. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 10557 W. Granada Dr. Sun City, AZ 85373.

On August 26, 2021, work on the underlying project commenced, and stopped on August 28, 2021.

On August 26, 2021, Complainant tendered Respondent a check for $700.00. On August 29, 2021, Complainant tendered Respondent a check for $600.00.

Investigator Melton consolidated Complainant items 1-6 as 1, 7 as 2, 8 as 3, 9 as 4, 10-11 as 5, 12 as 6, and 13-16 as 7; substantiating consolidates complaint items 2, 3, and 4.

A Compliance Jobsite Inspection was not scheduled or performed in this matter because on January 11, 2022, Complainant informed Investigator Melton that no corrective work had been performed by Respondent, and that she had not had any contact with Mr. Crowell during the Directive’s compliance period.

Between December 14, 2021, and January 04, 2022, Complainant called Respondent, sent text messages and emails, and even mailed Respondent a registered letter via USPS that was retuned as unclaimed. Complainant was unable to reach Respondent to scheduled corrective work or settle their dispute.

Both parties declined to provide closing arguments.

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 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

The material facts in the case at bar are clear.

The relevant and credible evidence of record clearly establishes that the parties had a drywall and trim contract, and that Complainant paid Respondent just over 98% on their contract. It is also clear that some of the work Respondent performed on the project did not satisfy the minimum standards set for workmanship by the Registrar. It is also exponentially clear that Respondent failed to attempt to comply with the Registrar’s Directive, and that the parties never settled their underlying dispute.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden as he failed to offer one or more reasons for his inaction in the matter. There is no evidence in the record that excuses or otherwise justifies Respondent’s conduct and/or lack of performance on this project.

Therefore, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Crowell Drywall, ROC License No. 311858, be suspended for five (5) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $500.00 in certified funds as a civil penalty in this matter.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Final Order, the Registrar shall revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, April 11, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary