ALJDEC decisions subject to certification as final

2022A-02195-CHC-ROC · Registrar of Contractors · 2022-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Allen B Zimdars,

COMPLAINANT,

Ayres Hawk Construction LLC,

License No. ROC 328539,

RESPONDENT.

No. 2022A-02195-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING (Virtual): August 28, 2022

APPEARANCES: Allen and Michelle Zimdars (“Complainant”) appeared representing themselves. Qualifying Party Dominique Fadon and Partner Francisco Guerrero appeared representing Ayres Hawk Construction LLC (“Respondent”). Michael Wiskow, ROC Investigator appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

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FINDINGS OF FACT

On July 13, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case (“Notice”) setting the above-captioned matter for formal administrative hearing. Through that Notice, ROC alleges that Respondent may have violated Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), (A)(3) [through Ariz. Admin. Code R4-9-108], and (A)(22).

Respondent holds license No. 328539, B-3 General Remodeling and Repair, issued by ROC on April 20, 2020.

Complainant filed with ROC a Licensed Complaint Form (“Complaint”) against Respondent alleging multiple items of poor and incomplete work on Respondent’s part regarding a remodeling project at Complainant’s residence. The Complaint indicated that work began on November 1, 2021 and stopped on December 3, 2021. The Complaint indicated that the contract amount was $54,600.00 with the amount paid at $41,550.00. The Complaint indicated that the “contract” and “change orders” were both written and oral.

ROC Investigator Michael Wiskow conducted a jobsite inspection on April 19, 2022. At that time, Investigator Wiskow documented the status of Respondent’s work through photographs.

On April 25, 2022, ROC issued to Respondent a Directive that required Respondent to remedy by appropriate means multiple compliance items; due to the multiple items listed on the Complainant, Investigator Wiskow numbered the thirty-one (31) compliance items through the course of his inspection. Of note, Item #1 was the lack of a building permit from the local building authority for the project.

The Directive ROC determined that Items 1 through 5, 7, 8, 10, 11, and 13 through 31 required Respondent to take appropriate action.

The Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. on May 12, 2022.

On April 27, 2021, Mr. Edwards conducted a compliance jobsite inspection at which time his opinion was that Compliance Items 11, 16, 17 and 20 had been corrected, Compliance Items 3 and 7 had been partially corrected, and that Compliance Items 12 and 15 were not corrected.

After verifying with Complainant that Respondent had not performed any of the corrective action work, Investigator Wiskow forwarded the matter to ROC Legal Department.

ROC issued the Citation and Complaint on May 25, 2022, noting that any answer had to be filed no later than June 9, 2022.

Respondent filed its Answer on June 7, 2022. Respondent agreed it should have been more diligent, however, indicated that “at some point” during the construction it had “added to our invoices” a provision making the homeowner responsible to obtain the permit. Respondent further indicated that it normally does do a walk-through with the homeowner to make any corrective repairs, but had not had the chance to do that in this case because they had not yet completed the project. Respondent indicated that they were “reticent” to obtain the permit and that they wanted the homeowner to pay for the drawings necessary to provide to the building jurisdiction to obtain the permit; however, Respondent continued to maintain that a permit was not required to make the corrective repairs. Finally, Respondent believed that it had taken all the steps they could take to try to get the permit and complete the work, but argued that they were prevented from doing so by Complainant’s rejecting their “best efforts” to take the necessary steps by not making the project available to them to have the drawings done and, ultimately, to do the work.

Respondent did not timely complete all the corrective work repairs as indicated in the Directive.

At hearing, Investigator Wiskow testified that Respondent had performed plumbing and electrical work outside the scope of its license, adding that he had never seen such egregious and dangerous electrical work. Regarding permits, Investigator Wiskow testified that is a matter of contract between parties and that, in this case, Respondent had started the project without a permit. Further, Investigator Wiskow indicated that the Directive had required Respondent to obtain the permit.

Complainant submitted hearing documents, which were taken into evidence.

At hearing, Complainant argued that Respondent had not asked to come back to the project to make any repairs until May 10, 2022 and had indicated that Complainant would be responsible for any added costs to obtain the permit (and complete the repairs). Complainant referred to multiple emails/texts between the parties.

At hearing, Respondent argued that it had done its research about what work needed to be under a permit and what work did not. Respondent argued that it had been denied access to make the repairs that did not need a permit and that there had not been enough time given to make the corrective repairs due to the delays in trying to get the drawings and obtaining a permit. Respondent stated that Complainant continued to check with the Investigator as to whether Respondent should be allowed to come in for repair work (even the work that did not require a permit). Respondent also referred to multiple emails/texts between the parties.

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 Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code R4-9-118. In this case, Complainant’s Complaint is the only open case as to Respondent.

Ariz. Rev. Stat. § 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:

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2. Departure from or disregard of: .... (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

3. Violation of any rule adopted by the registrar.

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

Ariz. Rev. Stat. § 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. § 32-1154(A)(22).

The preponderance of the evidence shows that Respondent did violate Ariz. Admin. Code R4-9-108(a), which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3). The preponderance of the evidence also shows that none of the workmanship deficiencies had been completed by the Directive deadline of May 12, 2022. The preponderance of the evidence shows that Respondent did not obtain a building permit as directed by the ROC.

The preponderance of the evidence shows that Respondent did not complete the repairs ROC ordered it to complete in the time ROC allowed, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(22).

Because Respondent has violated Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), (A)(3) and (A)(22), ROC has authority to discipline Respondent’s license. Discipline is warranted because the deficiencies identified ranged from major to minor and the deficiencies were not completed pursuant to ROC’s Directive. Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 328539 with a five (5) business-day suspension on the effective date of the Registrar’s Order in this matter.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 328539 with a five (5) 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 is forty days after the date of that certification.

-54864001

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-137160-45720000Done this day, August 28, 2022.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary