ALJDEC - Licensing
2022A-05783-RFA-LS-ROC · Registrar of Contractors · 2024-02-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Christopher Genaro,
COMPLAINANT,
v.
Michael Puccillo LLC,
ROC License No. 248171,
RESPONDENT.
No. 2022A-05783-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 13, 2024 at 9:00 AM.
APPEARANCES: Christopher Genaro (“Complainant”) appeared on his own behalf. Assistant Attorney General Mona Baskin, Esq. appeared as counsel on behalf of the Arizona Registrar of Contractors (“Registrar”) with Daniel Edwards and Katelyn Rolling as witnesses. No appearance(s) by or on behalf of Michael Puccillo LLC (“Respondent”). Michelle Genaro observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing on Appealable Agency Action (“Notice of Hearing”) was admitted into the record along with Registrar Exhibits 1-7. The January 19, 2024, Hearing Order was admitted for administrative purposes only.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record for ROC License No. 248171, as reflected on the Registrar’s public website. On August 15, 2008, the Registrar issued ROC License No. 248171 for General Dual KB-1 Building contracting to Respondent. The license had been renewed through August 31, 2021, and was later revoked by the Registrar on November 14, 2022. Patrick Michael Puccillo is listed as the Qualifying Party and Member on the license. Respondent’s address of record for the license is 4847 E. Quien Sabe Way Cave Creek, AZ 85331. The license had a $14,000.00 bond from Merchants Bonding Company, effective November 09, 2009, that was cancelled on September 03, 2020. The license has been disciplined on one (1) prior occasions.
On July 15, 2022, the Registrar received a narrative complaint filed by Complainant that alleged abandonment and poor work performance of his residential remodel project. The Registrar designated it Complaint No. 2022-05783 and assigned Steve Klein (“Investigator Klein”) for investigation.
On August 01, 2021, Investigator Klein issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on September 14, 2022, at 10:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On September 14, 2022, Investigator Klein inspected the work that had been performed on the project to date and took 5 photographs of the project. Respondent was not present. When he was finished, Investigator Klein drafted Jobsite Inspection Notes. Ultimately, Investigator Klein derived six (6) separate and distinct complaint items from Complaint No. 2022-05783, of which he was able to substantiate four (4) complaint items. Specifically Investigator Klein determined that complaint items 1-4 constituted poor and/or incomplete work, and failed to meet the Registrar’s minimum workmanship standards.
On September 15, 2022, Investigator Klein issued a Written Directive from the Registrar (“Directive”) to Respondent because he most of Complainant’s allegations that the work Respondent had done on the project failed to meet minimum workmanship standards. Respondent was put on notice that it had until 5:00 p.m. on October 03, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and 32-1154(E).
On or about October 11, 2022, because Respondent failed to take any steps to comply with the Directive, Investigator Klein escalated the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On October 13, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until October 28, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
Respondent did not file an Answer.
On November 07, 2022, the Registrar issued a Final Administrative Decision and Order (Default) (“Order”) to the parties that deemed Respondent’s failure to file an Answer to be an admission of the acts charged in the Citation. Because Respondent was found to be in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), the Registrar revoked ROC License No. 24817, effective November 14, 2022.
Respondent never appealed the Registrar’s Order.
On October 06, 2023, the Registrar received Complainant’s petition for payment from the Residential Contractors’ Recovery Fund (“Fund”), pursuant to Ariz. Rev. Stat. §§ 32-1132(A) and 32-1154(G), for $20,594.23. Attached were copies of a February 02, 2023 bond denial letter, Warranty Deed, the parties’ underlying contract, and Complainant’s proof of payments to Respondent.
On November 28, 2023, the Registrar issued a Notice and Order of Recovery Fund Ineligibility to the parties which held that Complainant was ineligible for a payout from the because Respondent was not properly licensed by the Registrar when the underlying contract was signed by the parties, when Complainant tendered his first payment on the project, or when the work was first commenced per Ariz. Rev. Stat. § 32-1132(C-D).
On December 11, 2023, the Registrar received a timely appeal request for hearing from Complainant.
On December 15, 2023, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for adjudication. Per the Notice of Hearing on Appealable Agency Action (“Notice of Appeal“) sent to the parties on December 28, 2023, the issue(s) for hearing are to determine if the Registrar’s Fund determination was properly made pursuant to Ariz. Rev. Stat. §§ 32-1132 to 32-1133.01, based on the evidence.
On February 13, 2024, an administrative evidentiary hearing took place at OAH before the undersigned.
Hearing Evidence
At the hearing, the Registrar called Daniel Edwards and Katelyn Rolling as witnesses. Complainant testified on his own behalf. The substantive evidence of record is as follows:
Complainant owns residential property located at 22020 N. 36th Way Phoenix, AZ 85050, which was the site of the underlying project at issue.
On July 15, 2021, Complainant entered into a $28,000.00 residential remodeling contract with Respondent regarding the aforementioned residential property.
Work on the project commenced July 20, 2021, and stopped or was otherwise completed in March 13, 2022.
Complainant paid Respondent for the project as follows:
$7,500.00 by check on July 15, 2021.
$7,500.00 by check on August 15, 2021.
$4,000.00 by check on September 15, 2021.
Complainant paid subcontractors on the project as follows:
$525.00 paid to electrician by check on December 16, 2021.
$500.00 paid to tile installer by check on May 02, 2022.
On an unknown date Respondent refunded Complainant $3,500.00.
On February 02, 2023, RLI Insurance Company issued a bond denial letter to Complainant that noted, “It appears that your claim occurred after the cancellation of the bond. Since RLI’s bond was not in force at the time of the allegations, [we] must respectfully deny your claim.”
Additional Evidence
The Registrar maintains the following license history for ROC License No. 248171:
Suspension for lack of compliance January 05, 2015, through January 20, 2015.
Suspension for lack of bond November 17, 2020, through November 09, 2021.
Suspension for non-renewal September 01, 2021.
Revocation as discipline in Complaint No. 2022-05783 on November 14, 2022.
The above-referenced information was visible and accessible to the public on the Registrar’s website during all statutorily relevant times. Such information was able downloadable and/or available for electronic transmission via email directly from the website.
Closing Arguments
In closing, the Registrar argued that an administrative award from the Recovery Fund could not be issued to Complainant, as he was statutorily barred because he did not satisfy all eligibility requirements. The Registrar further argued that there was no lawful provision by which an exception could be made for Complainant.
In closing, Complainant argued that he had double-checked the Registrar’s website prior to entering into his remodeling agreement with Respondent, and at that time ROC License No. 248171 was listed as active. Respondent opined that it was categorially unfair to shift the burden on a homeowner to print or otherwise save the active status of a residential contractor’s license for potential use years in the future. Per Complainant, the Registrar is obligated to provide him with relief, as it maintain police powers over Respondent.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.
Complainant bears the burden of establishing by a preponderance of the evidence that the Registrar’s Notice and Order of Recovery Fund Ineligibility was incorrectly and/or improperly issued. The Registrar bears the burden to establish factors in mitigation by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
Pursuant to Ariz. Rev. Stat. § 32-1131 et seq., in order to be eligible to access the Recovery Fund an applicant must meet specific eligibility criteria. An individual is eligible for an award from the residential contractors’ recovery fund if they both: (1) own residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance, and (2) actually occupy or intend to occupy the residential real property as the individual’s primary residence. Additionally, the applicant must have contracted with a residential contractor who was appropriately licensed either at the time of contract execution, when the first payment on the project was made, or when the work on the project first began.
Ariz. Rev. Stat. § 32-1154(F) provides that “if a contractor’s license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.”
Statutes should be interpreted to provide a fair and sensible result. Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.” “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
In the case at bar, the Tribunal concludes that the Registrar soundly established Complainant’s ineligibility to access the Recovery Fund. Here, Complainant did not establish by a preponderance of the evidence that he was legally eligible to access the Recovery Fund in accordance with Ariz. Rev. Stat. § 32-1131 et seq. Respondent was suspended November 17, 2020, through the date of its revocation on November 14, 2022. The record reflects that the parties’ underlying contract was entered into on July 15, 2021, and Complainant tendered his first payment to Respondent by that same date. The record also reflects that Respondent commenced work on the project July 20, 2021. Complainant conceded all of these facts. Thus, Respondent was suspended and inactive during the entire Ariz. Rev. Stat. § 32-1132(C-D) time period.
The Tribunal empathizes with Complainant’s frustrations regarding the Registrar’s refusal to grant him access to the Recovery Fund. However, Complainant’s assertion that if the Registrar’s website, in July 2021, reflected Respondent’s active status when the license was in fact inactive, created a procedural means by which Complainant could currently be granted access to the Recovery Fund, is not a contention that is supported by statute, binding legal authority, or any credible evidence in the record.
Therefore, the Tribunal must conclude that the Registrar legally established Complainant’s ineligibility to access the Recovery Fund. As such, the undersigned Administrative Law Judge has no choice but to find that Complainant was properly denied access to the Fund.
Thusly, Complainant’s appeal must be denied.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Registrar affirm the Fund’s November 28, 2023, Notice and Order of Recovery Fund Ineligibility.
IT IS FURTHER RECOMMENDED that the Registrar dismiss Complainant’s appeal.
NOTICE
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, February 20, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Office of the Attorney General, Counsel for the Registrar of Contractors
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
Michael Puccillo LLC, Respondent
4847 E. Quien Sabe Way
Cave Creek, AZ 85331
[email redacted]
Christopher Genaro, Complainant
22020 N. 36th Way
Phoenix, AZ 85050
[email redacted]
By: OAH Staff