ALJDEC - Licensing
2022A-06736-CHC-ROC · Registrar of Contractors · 2023-06-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Samantha Roth,
COMPLAINANT,
v.
Crosby Home Services LLC
ROC License No. 332263,
RESPONDENT.
No. 2022A-06736-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 31, 2023 at 1:00 PM.
APPEARANCES: Samantha Roth (“Complainant”) appeared on her own behalf. Christopher Crosby appeared on behalf of Crosby Home Services LLC (“Respondent”) Jim Dimond appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Brent Leslie observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this 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 as reflected on the Registrar’s public website. On February 16, 2021, the Registrar issued License No. 332263 General Residential B-3 General Remodeling and Repair contracting license to Respondent. The license is active and has been renewed through February 28, 2025. Christopher Keith Crosby is listed as the Qualifying Party and Manager on the license. Respondent’s address of record for the license is 9660 E. Cinnabar Cir. Prescott Valley, AZ 86314. Respondent has an active $9,000.00 surety bond on the license issued by RLI Insurance Company, effective February 01, 2021. The license no prior disciplinary record. There is one (1) open complaint listed against the license; which is presumed to be related to this matter.
On August 10, 2022, the Registrar received a 15-item complaint from Complainant against Respondent’s License No. 332263 alleging poor workmanship of their residential restoration construction project. The Registrar designated it Complaint No. 2022-06736 and assigned to Jim Dimond (“Investigator Dimond”) for investigation.
On August 12, 2022, Investigator Dimond issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on August 22, 2022, at 12:00 p.m. Correspondence was not returned as undeliverable to Respondent.
On November 16, 2022, Investigator Dimond inspected the work that had been performed on the project to date. Mr. Crosby was present. Investigator Dimond also reviewed the construction contract, and Complainant’s proof of payments to Respondent. He took 33 photographs of the project site. When he was finished, Investigator Dimond drafted his Inspection Notes. Ultimately, Investigator Dimond determined that only 11 of Complainant’s 15 complaint items fell under the Registrar’s jurisdiction. Of those 11, Investigator Dimond was able to substantiate 2-4 based on his firsthand observations. Specifically, Investigator Dimond concluded that another contractor or tradesman had performed work in Complainant’s residence, which directly affected Respondent’s work to an extent that performance could not be delineated between the two. Investigator Dimond further concluded that only Respondent’s work in Complainant’s garage could be inspected as no other persons performed work in or around that area. Based on his firsthand observations of Respondent’s work in the garage, Investigator Dimond concluded that Respondent’s workmanship on complaint items 2-4 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On November 29, 2022, Investigator Dimond issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on December 16, 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). Correspondence was not returned as undeliverable to Respondent.
On December 30, 2022, Investigator Dimond issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project “to determine the current status of the items listed on the issued Directive” on January 09, 2023, at 12:00 p.m. Correspondence was not returned as undeliverable to Respondent.
On January 09, 2023, due to confusion regarding what workmanship items needed to be addressed in Complainant’s garage, instead of conducting a compliance inspection Investigator Dimond walked the parties through Complainant’s garage and identified items that needed to be addressed by Respondent. He took 7 photographs of the outstanding complaint items, 2-4, at issue. When he was finished, Investigator Dimond drafted Compliance Jobsite Inspection Notes that serve as Respondent’s formal notice that the Directive’s compliance period was extended by an additional fifteen (15) days, to January 24, 2023.
Respondent was further advised, per the document, as follows:
After that time, another compliance inspection can be held to determine if the complaint should be closed or forwarded for citation.
On March 10, 2023, Investigator Dimond forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On March 08, 2023, 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 April 06, 2023, to respond with his Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.
On or about April 06, 2023, the Registrar received Respondent’s timely Answer whereby Mr. Crosby alleged Respondent had been “fired from completing the job,” and alleged Complainant text Respondent “not to come back and finish” the contracted work because she had hired another contractor. Mr. Crosby further alleged that seven (7) weeks after being fired, Complainant asked Respondent to finish the job to which Respondent advised it would only perform work if Complainant paid an alleged outstanding balance on the contract. Per Mr. Crosby, Complainant would not schedule time(s) for corrective work, effectively causing a denial of access to the project site during the Compliance Jobsite Inspection Notes compliance period due to Complainant’s “uncooperativeness.”
On April 12, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on May 31, 2023. Per the April 26, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf and called investigator Dimond as a witness. Respondent called Christopher Crosby as a witness and submitted Exhibits 1-3 into the record. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
On or about October 12, 2021, the parties entered into a residential restoration agreement for Respondent to perform repairs at residential property at 1927 Forest View Prescott, AZ 86305 for $61,000.00. On November 05, 2021, work on the project commenced. On November 22, 2021, work on the projected stopped.
On October 13, 2021, Complainant paid Respondent $5,000 towards the contract.
On October 28, 2021, Complainant paid Respondent $4,750 towards the contract.
On November 08, 2021, Complainant paid Respondent $2,500 towards the contract.
On November 19, 2021, Complainant paid Respondent $4,500 towards the contract.
On or about November 18, 2021, the parties executed a Change Order to modify their agreement to both eliminate and add items to Respondent’s scope of work. The resulting agreement reduced the contract price from $61,000.00 to $21,600.00. Complainant’s prior payments totaling $16,750.00 were noted, leaving Complainant with an outstanding $4,850.00 balance due upon completion. Neither party signed the agreement.
At no time between November 29, 2022, and January 24, 2023, did Respondent perform any corrective work on the underlying project.
Per Complainant, she hit a “breaking point” with Mr. Crosby and his primary tradesman, Ryan, due to perceived disrespect and gaslighting. As a result, after Respondent left the project site for the Thanksgiving holiday, around November 22, 2021, Complainant hired drywall and painting contractors to complete outstanding work on the project. After Complainant determined that the supplemental contractors would not be able to finish the job, Complainant attempted to get Respondent to return to the site in early January 2022.
The underlying complaint was filed about 7 months later after the parties could not agree how to move forward.
Additional Evidence
On December 01, 2021, the following text exchange took place between the parties:
Mr. Crosby: Do you want me to come out tomorrow or have Ryan and Rocco out on Friday
Complainant: No actually I’m having someone else come in and fix everything
You are not needed anymore
Mr. Crosby: So you’re saying you aren’t going to let me finish like we planned?
(All errors in original.)
On December 11, 2021, Mr. Crosby issued the following text message to Complainant, in pertinent part:
I have an issue with you not letting us finish the work. I think you owe me money for the work we did. I understand that you don’t agree.
On January 06, 2022, the following text exchange took place between the parties:
Complainant: Chris I need you to please come back and finish the job. I do not want to have Ryan back in my house as he has caused to [sic] much damage as is and done a lousy job.
Mr. Crosby: *** screenshots the parties’ aforementioned December 01, 2021, exchange*** This is you firing me and refusing to let us finish. I’m sure the complaint wouldn’t say “I fired them and told them not to come back” but that’s what happened. The reason it’s not finished now is because of your decision and I’d feel comfortable defending myself against that complaint. With that being said I’m willing to work with you toward a more amicable resolution then [sic] that. Here’s my expectations moving forward
1. Sign a new contract because our old one is void
2. I need to file the pre lien paperwork before coming back
3. Honor your word
Complainant: I have had to hire someone to come in and fix some of the drywall in the living room that you said looked good and it was horrible
I will not sign a contract Chris
I just need you to fix what I have paid you to do
Mr. Crosby: It’s not finished. You told me not to come back and finish then ignored me for a month. We didn’t finish, you didn’t make the final payment and you fired me. I’m not asking you to pay more money then [sic] what’s outstanding because the other one is voided by your decision
Complainant: How much do you think I owe you
Mr. Crosby: You owe me $4675 from the original agreement. You were never presented with a finished product I never told you we were finished and you refused to let us finish
Complainant: I refused to let Ryan in because I am not satisfied with his workmanship [a]mong other things[.] I have already had to pay $1000 to a real drywaller to fix the mess in the ceiling in my den when you wouldn’t respond to my text. You told me you were done Ryan cleaned up his equipment and left I told you I was not satisfied and I felt like you were coming over to argue and tell me everything was fine [j]ust like you always [did]
Mr. Crosby: I said we’d be back after thanksgiving to finish. Again that was your decision to not allow us back to complete the work and you never made a final payment. You agree the contract you signed is nullified as do I so if you want work done you need to sign a new contract and I’m not starting until pre lien paperwork has been completed. I’m not trying to get extra money for anything but I don’t trust you to keep your word
Complainant: I do not feel comfortable with this. I do not owe you money. I have over paid [sic] you
(All errors in original.)
Closing Arguments
In closing, Mr. Crosby argued that because Complainant fired Respondent from the project, and because Complainant refused to schedule time for corrective work during the Directive’s extended compliance period, per Investigator Dimond’s Compliance Jobsite Inspection Notes, that Respondent had been denied access to the project and thusly could not be disciplined by the Registrar.
Complainant declined to provide a closing argument.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
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 proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses 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.”
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 R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.
Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”
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.”
Statutes should be interpreted to provide a fair and sensible result. “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.
The material facts in the case at bar are clear.
It is clear from the record that parties’ breakdown in constructive communication lead to mass confusion about the rights and responsibilities each party had under their agreement. Based on the relevant and credible evidence of record, the facts establish that the parties’ final restoration agreement was for $21,600.00, of which Complainant paid $16,750.00. The record also reflects that the final payment of $4,850.00 was not due until the project was complete. Here, both parties agree that Respondent did not finish the project. The record further reflects that Investigator Dimond determined that some of the work Respondent performed on the project did not satisfy the Registrar’s minimum standards, and that Respondent failed to timely comply with the Registrar’s Directive, though extended through to January 24, 2023.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s extended Directive and timely remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence.
Here, Mr. Crosby argued that Respondent was exempt from discipline due to being “fired” from the job on December 01, 2021, and because Respondent had been denied access to the project site during the extended Directive period from January 09, 2023, through to January 24, 2023. This Tribunal is in agreement. The record establishes that Respondent performed work on the project November 05, 2021, to November 22, 2021, and took all of their equipment when they left the site for the holiday break. On December 01, 2021, when Mr. Crosby attempted to create a return schedule with Complainant for the project’s completion, he was informed that Respondent had been replaced and told they were “not needed anymore.” Mr. Crosby’s belief that Respondent had been terminated is credible in light of the fact that Complainant did not return his correspondence of December 11, 2021, when Mr. Crosby inquired about final payment, and because Complainant asked Respondent to return January 06, 2022. The reasonableness of Mr. Crosby’s litany of conditions is irrelevant in this analysis. What is relevant, however, is the fact that Complainant refused to allow Respondent to return to perform corrective work per the [extended] Directive January 09, 2023, through to January 24, 2023, in large part, because she disagreed with Investigator Dimond’s complaint item substantiations and was essentially vexed with Mr. Crosby. Thusly, the evidentiary record in this matter reflects that Respondent is excused or otherwise legally justified for failing to complete corrective work necessary to satisfy the Registrar’s Directive. Respondent has established one or more affirmative defense(s) by a preponderance of the evidence.
Because Complainant has not established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3) and/or 32-1154(A)(22) by a preponderance of the evidence, Complainant has not established grounds for the Registrar to take disciplinary action against ROC License No. 332263.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that Complainant’s appeal be denied by the Registrar.
IT IS FURTHER RECOMMENDED that Complaint No. 2022-06736 be closed.
NOTICE
Pursuant to Ariz. Rev. Stat. § 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 Final Order will be forty (40) days from the date of that certification.
Done this day, June 05, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Crosby Home Services LLC, Respondent
9660 E. Cinnabar Cir.
Prescott Valley, AZ 86314
Samantha Roth, Complainant
1927 Forest View
Prescott, AZ 86305
By: OAH Staff