ALJDEC - Licensing
2022A-08810-CHC-ROC · Registrar of Contractors · 2023-04-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Judi Bowers ,
COMPLAINANT
v.
Kevin Lee Nolte
DBA: Kevin's Professional Services
License No. ROC 267085,
RESPONDENT
No. 2022A-08810-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 13, 2023, 9:00 A.M.
APPEARANCES: Complainant Judi Bowers appeared on her own behalf; Respondent Kevin Nolte appeared on his own behalf
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Kevin Lee Nolte, DBA Kevin's Professional Services, is the holder of License Number 267085 issued by the Registrar of Contractors (Registrar).
2. On or about September 29, 2022, Judi Bowers (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with painting of a home in Tempe, Arizona, by Respondent (“project”).
3. The Registrar performed an inspection of the project on November 2, 2022. Thereafter, the Registrar issued a Directive, dated November 22, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 12, 2022 (“Directive deadline”), as follows:
Compliance Item: -1) overspray patches of paint on the drip edge of the roof on
house and guest house
Investigator’s Observation: I was shown several areas on the roof drip edge of the main house and the guess house that had overspray paint on it. Overspray paint has to be removed from the roof drip edge areas on both buildings
Respondent shall correct by the appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not
performed in accordance with professional industry standards.
4. After being informed that no corrective work had been done, the Registrar then issued a Citation to Respondent, dated December 29, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, and issued a Notice of Hearing for March 15, 2022, at 9:00 A.M.
6. At the March 15, 2023, hearing, Complainant Judi Bowers testified on her own behalf. Respondent Kevin Nolte testified on his own behalf. Albert Bernal, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he could only verify that one item concerning overspray could be confirmed.
8. Complainant Judi Bowers testified, as herein relevant to the Citation, that she met with Respondent on October 28, 2022, before the inspection and he offered to come back on October 30 but that date was not convenient for her. She then testified she received no contact from him during the Directive period but she reached out to him on December 21, 2022, and asked for potential dates for work to be done but that communication thereafter broke down.
9. Respondent Kevin Nolte testified, as herein relevant to the Citation, that he was willing to do the corrective work but that Complainant did not provide him with any dates to do the work.
10. Based on the evidence, the Tribunal finds that Compliance Item 1 was not corrected by Respondent.
11. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on August 5, 2016. The site also reflects no previous disciplinary cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in compliance with Arizona Administrative Code Rule 4-9-108(a). There was no dispute that Respondent did not correct the Directive item. Further, Respondent did not dispute the existence of the Directive item.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. Respondent in essence argued that he had made effort to perform corrective work but that Complainant prevented him from doing so. While Complainant testified Respondent made no contact with her during the Directive period, Respondent offered no evidence to rebut that testimony. Further, whatever efforts Respondent may have made after the Directive deadline do not constitute a valid justification for not performing corrective work prior to the deadline.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Kevin Lee Nolte, DBA Kevin's Professional Services, License Number 267085 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
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, April 3, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Judi Bowers
902 South Farmer Avenue
Tempe, AZ 85281-5999
[email redacted]
Kevin Lee Nolte
DBA: Kevin's Professional Services
9174 W Potter Dr
Peoria, AZ 85382-5243
[email redacted]
By: OAH Staff