ALJDEC - Licensing

2022A-03958-CHC-ROC · Registrar of Contractors · 2023-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Platinum Construction LLC,

COMPLAINANT,

v.

Arturficial Green Solutions LLC,

License No. ROC 333816,

RESPONDENT.

No. 2022A-03958-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2023 and April 20, 2023.

APPEARANCES: Larry Simmons for Platinum Construction LLC (Complainant). Scott Anderson for Arturficial Green Solutions LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

Respondent is the holder of License No. 333816, CR-21, Hardscaping and Irrigation, issued by the Arizona Registrar of Contractors (Registrar) in June 2021.

On or about April 28, 2022, the Registrar received Complainant’s Licensed Complaint Form (Complaint) alleging poor workmanship on an access wall. Complainant indicated that the work had started and stopped on August 2, 2021.

Following the jobsite inspection on June 16, 2022, Wes Ellington issued a Written Directive (Directive) on June 21, 2022 verifying that Respondent’s masonry work on the subject wall did not meet workmanship standards. The Directive explained that Respondent was required to correct the wall by appropriate means, by using an appropriately licensed contractor. The Registrar set forth July 8, 2022 as the deadline for Respondent’s compliance with the Directive.

On July 8, 2022, Respondent contacted Investigator Ellington inquiring how they were to complete the work given that his license did not permit him to work on perimeter fences. In his compliance notes, Investigator Ellington noted that Respondent clearly had not made efforts to correct the wall by the deadline and that no corrective work had been performed during the Directive period.

The Registrar issued a Citation on July 13, 2022, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).

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.”

On July 28, 2022, Respondent emailed an Answer to the Citation which indicated they had attempted to find a licensed mason within the time period but found that the work could not be arranged by the July 8th deadline. Respondent stated that they had wanted to work with Complainant who had told them he had used one of his subcontractors to fix the wall. Respondent felt that an unlicensed contractor had done the work and that Complainant would not confirm to them the name of the contractor or the estimate for the correction.

The Registrar noticed the matter for hearing.

At hearing, Complainant indicated that they had used an “in-house” mason to do the work on July 14, 2022 and that Respondent had not agreed to cover the cost of $1,200.00 but wanted to proceed with the ROC hearing. Complainant indicted that to correct the poor workmanship, they had to demo the wall, haul away the debris, rebuild, and paint both sides.

At hearing, Respondent agreed they were responsible but had wanted to know the estimated cost and that the person who was going to fix it was licensed. Respondent argued that Complainant had not given them any information and had just demanded payment of $1,200.00. Respondent wanted to pay for the actual costs of the corrective work but not for any profit Complainant may have made.

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only case. 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 Vazanno 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 workmanship, Investigator Ellington found a workmanship issue existed at the time of the job site inspection. Following the issuance of the Directive mandating correction of those items by July 8, 2022, Investigator Ellington determined that the same workmanship issue remained uncorrected. 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 333816 as follows: a two (2) business-day suspension on the effective date of the Registrar’s Order in this matter.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, May 10, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Registrar

Registrar of Contractors

c/o Legal Department

[email redacted]

Wes Ellington, Investigator

[email redacted]

Platinum Construction LLC

[email redacted]

Arturficial Green Solutions LLC

Scott Anderson

[email redacted]

[email redacted]

By: OAH Staff