ALJDEC decisions subject to certification as final
2021A-06221-CHC-ROC · Registrar of Contractors · 2022-06-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sara Samir Holt,
COMPLAINANT,
v.
K OS REMODELERS LLC,
License No. ROC 333183,
RESPONDENT.
No. 2021A-06221-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 27, 2022
APPEARANCES: Sara and Jared Holt (Complainant) appeared virtually. Milton Shackleford, K OS Remodelers LLC (Respondent), Respondent’s Qualifying Party, appeared virtually. Registrar of Contractor’s Investigator Lisa Melton appeared virtually.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License No. 333183, B-3 General Remodeling and Repair Contractor, issued by the Arizona Registrar of Contractors (Registrar) in April 2021.
On or about November 26, 2021, the Registrar received Complainant’s Licensed Complaint Form (Complaint) containing a 20-item list of complaints regarding incomplete construction work, damaged property, and alleged written contractual deficiencies. The Complainant indicated that the construction work had started on September 2, 2021, had been projected to be complete by September 23, 2021 but had stopped as of October 12, 2021. Complainant attached a written statement to the Complaint with concerns about Respondent not having provided a written contract or copies of any receipts or invoices. Complainant noted that they had paid Respondent a total of $14,000.00 by October 12, 2021 and that Respondent had never returned to complete the work.
Following water damage at the residence, Complainant’s insurance company [Stillwater] provided itemization of the damage/repair work to be done. The total insurance reimbursement/coverage amount was $20,441.59.
Respondent agreed to perform the insurance work for the stated insurance reimbursement/coverage amount.
After receiving the Complaint, and by letter dated December 6, 2021, Registrar’s Investigator Lisa Melton scheduled a jobsite inspection for January 26, 2022. Respondent did not appear for the jobsite inspection.
At the time of the jobsite inspection, Investigator Melton found that, per the insurance detail, construction work had been performed but the project’s work was not complete. With respect to workmanship standards, Investigator Melton found that that some of the construction work was poor; she documented the work, and quality of the work, performed to that date in her jobsite inspection notes and in photographs. An additional item was added at the jobsite inspection.
On February 10, 2022, Investigator Melton issued a Written Directive (Directive) verifying nineteen (18) items that were incomplete and one (1) item that was a departure from requisite city-permitting and city-inspection. Investigator Melton determined that there were violations of the governing rule/law: (a) Ariz. Rev. Stat. § 32-1154(A)(1) as to the incomplete work items; and, (b) Ariz. Rev. Stat. § 32-1154(A)(2) as to the requisite city-inspection item. The Registrar set forth March 1, 2022 as the deadline for Respondent’s compliance with the Directive, i.e., to complete their scope of work by appropriate means/methods.
Investigator Melton did not specify violations of Ariz. Rev. Stat. § 32-1154(A)(3) regarding poor workmanship because the work was not complete and Respondent had not yet had opportunity to make correct any poor work.
On February 14, 2022, Respondent reached out to Investigator Melton with regard to the Complaint. Respondent advised Investigator Melton that he had “tried to contact the home owner” to rectify the matter. Investigator Melton replied to both Respondent and Complainant that Respondent would need access to be able to perform the corrective directive work. The February 2022 e-mails between the parties demonstrate a breakdown in trust as to the project.
Investigator Melton did not perform a compliance inspection because Complainant indicated to her that no work had been performed by Respondent. The Complaint was referred to the Registrar’s Legal Department for citation.
On March 18, 2022, the Registrar issued its Citation charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(1), Ariz. Rev. Stat. § 32-1154(A)(2), and ARIZ. Rev. Stat. § 32-1154(A)(22). The Registrar
Ariz. Rev. Stat. § 32-1154(A)(1) includes abandonment or refusal to perform after submitting a bid without legal excuse for the abandonment or refusal.
Ariz. Rev. Stat. § 32-1154(A)(2) includes departure or disregard from the plans and specifications in any material way without the consent of the person entitled to have the work complete in accordance with the plans and specifications.
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 Registrar received Respondent Answer to the Citation, indicating that there had been “numerous attempts” to schedule the completion but that in an e-email Complainant had said the “earliest time” to come and work on the project was after March 22, 2022. Respondent noted that a third party had helped mediate the matter and that Complainant had decided to purchase doors and have a painter complete the contract. Finally, Respondent alleged that Complainant had denied reasonable access for Respondent to be able to complete any work.
The Registrar noticed the matter for hearing.
At hearing, Complainant noted that Respondent had never provided receipts or invoices despite their requests for such for the insurance company. Complainant indicated that the last time Respondent was at the home, he had told Complainant that they were behind in payments to him, and Complainant indicated they made a Zelle transfer immediately. Regarding the cabinet doors, Complainant indicated that when they later followed up with the supplier, the supplier indicated that Respondent had never ordered the doors. Regarding the painter, Complainant indicated that they had needed the painter’s contact number for the touch-up work when the painter originally had not shown up to do that work; Complainant later obtained the painter’s services for some work unrelated to the Respondent’s project. Complainant noted that, by a certain point, they wanted to see identification and have employee information on any persons Respondent was going to send to their home to do work because, in the prior work, Respondent had brought in unlicensed persons and his family members to do work and because Investigator Melton had informed them that persons Respondent brought in needed to be on payroll if they were unlicensed.
At hearing, Respondent indicated that he believed Complainant did not want him to come back at all and, because they were mad at him, it had made things impossible to complete the work. Respondent indicated that he was unaware of what was done incorrectly by the painter and that he had paid the painter. Respondent stated that “supply chain” issues prevented him from being able to find new cabinets and that he either was going to build, or ended up building, new cabinets with the subsequent problem that there was a dispute on the doors to be painted or unpainted. Respondent stated that he felt they just could not come to agreement on arrangements to complete work because of the “hours.”
As of June 21, 2022, administrative notice is taken of Respondent’s license record with the Registrar, which reflects that this case is the only outstanding case with the Registrar.
As of June 21, 2022, administrative notice is also taken of Respondent’s license information with the Registrar which continues to reflect Respondent’s address of record as 813 E. Constance Way.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
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 section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
5. 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.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. 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).
8. Construction is not a perfect art and, normally, contractors are allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding this project, Investigator Melton found that the work was not completed prior to or after the Directive deadline and, on Complainant’s averment and the record, Respondent had not returned after October 2021 to complete the work. The hearing record demonstrated that Respondent did not return to the project by the Directive date to complete the work and project work remained uncompleted, in the face of the plans and specifications for the project work. Therefore, the Administrative Law Judge concludes that the Investigator-determined violations existed and, thus, Respondent is in violation of Ariz. Rev. Stat. §§ 32-1154(A)(1), (A)(2), and (A)(22).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 333183 as follows: a two business-day suspension on the effective date of the Registrar’s Order in this matter.
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.
Recommended this date, June 21, 2022
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary