ALJDEC decisions subject to certification as final
2022A-03891-CHC-ROC · Registrar of Contractors · 2022-10-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Polly Elaine Thomas,
COMPLAINANT,
v.
Poor Boys General Remodeling Inc,
License No. ROC 211347,
RESPONDENT.
No. 2022A-03891-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
VIRTUAL HEARING: September 29, 2022
APPEARANCES: Complainant Polly Thomas appeared, representing herself. Joann Cobb appeared, representing Respondent. Christopher Allison, Registrar Investigator, appeared as a witness for the parties.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
____________________________________________________________________
FINDINGS OF FACT
Respondent is the holder of License No. 211347, B General Residential Contractor, issued by the Arizona Registrar of Contractors (“Registrar”) in September 2005.
On or about May 12, 2022, the Registrar received Complainant’s Licensed Complaint Form (“Complaint”) containing an 11-item list of complaints regarding construction and other issues. Complainant gave the contract date as August 14, 2021, noting that the work started in December 2021 and stopped on March 9, 2022. Complainant further noted that the December 9, 2021 invoices were both paid in full.
On June 2, 2022, Registrar’s Investigator Chris Allison conducted a jobsite inspection and thereafter issued a Written Directive (“Directive”), dated June 6, 2021, directing that corrective action was necessary as to the one item: Item #3 on Complainant’s Complaint. The Registrar set June 22, 2021 as the deadline for Respondent’s compliance with the Directive. The hearing record does not demonstrate any Registrar-granted extensions to the deadline; however, Complainant seemed to indicate that Respondent even had additional time due to the scheduling of the compliance inspection for July 11, 2022.
The Registrar’s Directive set forth one issue to be corrected: Item #3, a railing” not having been painted. Other Complaint items had been taken care of by someone other than Respondent and/or were not able to be determined as a workmanship issues by Respondent.
Following a compliance inspection on July 11, 2022, Investigator Allison determined that no corrective work had been done by Respondent.
On July 15, 2022, the Registrar issued its Citation charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(22) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108.
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 Section 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) 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 noticed the matter for hearing.
At hearing, Complainant indicated that Respondent had not contacted her until July 10, 2022 for purposes of doing the railing painting. Complainant indicated that she did not get Respondent’s July 10, 2022 message because she had company. Complainant noted that, even at that time, the railing still needed to be sanded before being painted with Rustoleum. Overall, Complainant argued that Respondent had abandoned the project and had not followed the Directive to complete the work.
The parties did not have a written contract; the invoices had simply listed things that Complainant and Respondent had talked about.
The work was initially delayed due to Respondent finishing other projects and her workers out with COVID. Respondent started the work in December 2021 but had multiple medical problems in the Spring 2022. Respondent stated that, in April 2022, Complainant had told Respondent not to come and do anymore work, but to come and pick up her things/tools etc.
At hearing, Respondent indicated that the only reason the railing was listed on the invoice was that it was one of the many things that Complainant had wanted to be done, but that Respondent had not yet even started work on that item and, further, that Complainant had not been charged for that portion of work.
Respondent indicated that she had been willing to do the work and had hoped to resolve the matter with Complainant prior to the hearing but felt that Complainant had actually not allowed Respondent to complete the work.
The hearing record indicates that work was being done by Respondent and the project was in progress but delayed for several reasons. The hearing record further demonstrates that Respondent did not complete the Directive item.
Based on the hearing record, Respondent failed to complete corrective action as had determined was required by Investigator Allison, pursuant to the Directive, by the June 22, 2022 date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only case open regarding Respondent; the Registrar’s record does not show any discipline on the license as of the date of this recommended decision.
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 must be 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 the Complainant’s Complaint, Investigator Allison found one Directive item that needed to be addressed by the Directive deadline, or at least by the compliance inspection. In this case, that one item remained unaddressed at the July 11, 2022 compliance inspection. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issue existed and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 211347 as follows:
(a) 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, October 25, 2022.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Polly Elaine Thomas
5331 W. Morgan Place
Chandler, AZ 85226
[email redacted]
Poor Boys General Remodeling Inc
8148 W Cherry Ann Ln
Payson AZ 85541-6174
[email redacted]
By Miranda Alvarez
Legal Secretary