ALJDEC decisions subject to certification as final

2021A-06940-CHC-ROC · Registrar of Contractors · 2022-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maureen O'Neil,

COMPLAINANT

Johnson Electric LLC

License No. ROC 333581,

RESPONDENT

No. 2021A-06940-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 23, 2022

APPEARANCES: Maureen O’Neil on her own behalf; Robert Barry, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 5, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 19, 2022 at the Office of Administrative Hearings. The matter was continued and the hearing was conducted on June 23, 2022.

Through its Notice of Hearing ROC alleges that Respondent Johnson Electric LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

Respondent holds license number 333581; Daniel Johnson is Respondent’s qualifying party and a member of the LLC.

Complainant is Maureen O’Neil.

Respondent and Ms. O’Neil entered an oral contract that called for Respondent to perform electrical work at Ms. O’Neil’s house.

Ms. O’Neil filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part. The parties are engaged in civil litigation regarding the work at issue.

ROC investigator David Fagerburg conducted a jobsite inspection on February 7, 2022.

On February 22, 2022, ROC issued to Respondent a Directive that provides in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 14, 2022.

***

Investigator Notes:

1: Both parties agree that there is no written contract.

2: The complainant did not provide a scope of work to be performed by the respondent.

3: Prior to this jobsite investigation the complainant’s attorney provided a string of text messages between the 2 parties discussing the scope of work and timeline of events. The text message string has been reviewed and any items listed regarding the scope of work agreed upon by both parties will be included in the scope of work.

4: After this jobsite investigation the respondent provided a 1 page copy of the scope of work for the project. Determinations will be made based on the scope of work provided by both parties which were agreed upon.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliant Item 2: Outside lighting not attached to wall properly

Investigator’s Observation: The respondent acknowledged the outside lighting fixtures are loose and will ensure the fixtures are installed properly.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards. ARS §32-1158 (A) Minimum elements of a contract.

Compliant Item 8: Electrical boxes were never labeled

Investigator’s Observation: The respondent acknowledged the breakers in both panels are not labeled per the scope of work provided.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards. ARS §32-1158 (A) Minimum elements of a contract.

Compliant Item 12: Multiple outlets in kitchen do not work

Investigator’s Observation: The respondent acknowledged that there are 3 outlets that do not have power in the kitchen area.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards. ARS §32-1158 (A) Minimum elements of a contract.

ROC determined that the other allegations in Ms. O’Neil’s Complaint did not require action on Respondent’s part.

Respondent acknowledges that the three Complaint Items that ROC ordered it to remedy do required correction. Mr. Johnson estimated that a two-person crew could complete that work in about two hours.

Mr. Johnson did not fully understand that ROC was directing Respondent to make those corrections by March 14, 2022, but he contacted Ms. O’Neil on or about March 12, 2022. Ms. O’Neil testified to the effect that Respondent could have come to her house on the two days before ROC’s Directive expired, but did not do so.

ROC issued to Respondent a Citation dated March 18, 2022, through which it alleged that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

On March 21, 2022, Respondent filed an answer to ROC’s Citation through which it acknowledged it had left the job uncompleted after Ms. O’Neil and Mr. Johnson had a disagreement and she called him names.

After ROC’s directive expired, Respondent made several attempts to schedule with Ms. O’Neil a time for Respondent to make the required repairs. Because ROC’s Directive had expired, Ms. O’Neil would not allow Respondent access to complete the work, and she testified that she was only allowing access prior to the expiration of the Directive because she believed that she was required to do so.

As of the hearing date, Respondent stood ready, willing and able to make the corrections that ROC ordered it to complete.

ROC’s substantive policy statement 2017.01 provides that “Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations.”

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:

*****

3. Violation of any rule adopted by the registrar.

*****

12. Failure in any material respect to comply with this chapter.

*****

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. 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.

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 provides that any contract for more than $1000 with the owner of a property must be in writing.

Substantive policy statement means:

[A] written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only....

Ariz. Rev. Stat. § 41-1001(24).

Respondent acknowledges that the three Items identified by ROC do require correction. Consequently, the preponderance of the evidence shows that Respondent 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 did not have a written contract for a job of over $1000, which is a violation of Ariz. Rev. Stat. sections 32-1158 and 32-1154(A)(12).

Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

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.”

In this case, the proven workmanship violations are minor and Respondent stands ready, willing and able to correct these deficiencies, but Respondent has acknowledged leaving the job before its work was completed. Consequently, Respondent’s license should be suspended for one day and Respondent should be ordered to pay a civil penalty of $200.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar suspend Respondent Johnson Electric LLC’s license number 333581 for one day and impose against Respondent a civil penalty of $200.

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.

-54864001

001

-137160-45720000Done this day, July 13, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

001

-137160-45720000