ALJDEC - Licensing
2022A-10174-CHC-ROC · Registrar of Contractors · 2023-04-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Katharine Logsdon,
COMPLAINANT,
v.
Wilcoxen & Sons LLC
ROC License No. 332885,
RESPONDENT.
No. 2022A-10174-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 04, 2023 at 1:00 PM.
APPEARANCES: Katharine Logsdon (“Complainant”) appeared on her own behalf. Joshua C. Wilcoxen appeared on behalf of Wilcoxen & Sons LLC (“Respondent”). John Smith appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
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 April 05, 2021, the Registrar issued License No. 332885 General Specialty Dual CR-61 Carpentry, Remodeling and Repairs contracting license to Respondent. The license is currently active and renewed through April 30, 2025. Joshua Cloud Wilcoxen is the Qualifying Party/Manager on this license. Respondent’s address of record for the license is 1842 N. Highland Ave. Tucson, AZ 85719. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective March 31, 2021. There is no prior discipline noted for the license, save one open complaint which is presumably related to this matter.
On or about November 07, 2022, the Registrar received a 5-item complaint from Complainant against Respondent’s License No. 332885 alleging poor workmanship of their painting project. The Registrar designated it Complaint No. 2021-04472 and assigned to John Smith (“Investigator Smith”) for investigation.
On November 16, 2022, Investigator Smith issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 15, 2022, at 11:00 a.m.
On December 15, 2022, Investigator Smith conducted a review project-related correspondence exchanged between the parties and inspected the work that had been performed on the project to date. He also took 45 photographs of the project site. When he was finished, Investigator Smith drafted his Inspection Notes. Ultimately, Investigator Smith substantiated complaint items 1-4. Specifically, Investigator Smith determined that complaint items 1-4 failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective work to remediate the identified deficiencies. Investigator Smith also substantiated compliant item 5 because there was no written contract executed for the project.
As a result, on November 16, 2022, Investigator Smith issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. §§ 32-1154(A)(12); 32-1158(A).
On December 16, 2022, Investigator Smith issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated all of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on January 13, 2023, 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 January 04, 2023, Investigator Smith issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 17, 2023, at 1:00 p.m.
On January 17, 2023, Investigator Smith inspected the corrective work that had been performed on the project and took 23 photographs. When he was finished, Investigator Smith drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Smith determined that Respondent had satisfactorily remediated complaint items 3 and 4, and that Respondent had submitted an updated contract template to the Registrar to show compliance with Ariz. Rev. Stat. §§ 32-1154(A)(12); 32-1158(A). It was also determined, however, that Respondent had not performed corrective work necessary to remediate complaint item 1 and did not attempt to remediate complaint item 2.
On January 17, 2023, Investigator Smith forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On January 24, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(12); 32-1158, and 32-1154(A)(22). Respondent was given until February 08, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On February 06, 2023, the Registrar received Respondent’s Answer whereby Respondent argued that the matter had essentially been settled between the parties, rendering the Citation moot. In pertinent parts, Respondent provided the following:
On October 28, 2022, Complainant’s husband expressed dissatisfaction with Respondent’s work, though unfinished, and advised that final payment would not be remitted upon completion. In response, Respondent moved the estimated date of completion for the project back by 2 weeks, to November 09, 2022. Additionally, Respondent informed Complainant that he would require an additional payment of $5,000.00 prior to proceeding with the remainder of the scope of work.
After Complaint No. 2021-04472 was filed, Respondent advised that no additional payment towards the contract would be due until completion of the project, and offered to finish the work. In response, Complainant advised that access to the project would not be granted until the date of Investigator Smith’s inspection.
On December 01, 2022, Respondent met with Complainant to inspect the project and discuss Complainant’s workmanship-related grievances. At that time, Complainant advised that there was approximately $4,800.00 worth of damage to her pavers, and that 2 days of power washing had not remediated the Respondent’s overspray. Respondent scheduled corrective work for January 04, 2023, which was cancelled by Complainant on January 03, 2023, and rescheduled for January 11, 2023.
Between January, 11, 2023, and January 13, 2023, Respondent performed 13 hours of corrective work. Respondent chose not to address complaint item 2, and instead reduced $5,347.00 from the balance owed on the contract for the “pavers and touchup items.”
On or about February 02, 2023, Complainant paid the $1,000.00 invoice in full.
On February 08, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 04, 2023. Per the February 24, 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)(2)(a)
Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158
Charge 4: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Smith as a witness. Mr. Wilcoxen testified on behalf of Respondent. 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:
Complainant owns residential property located at 7840 N. Paseo Del Norte Tucson, AZ 85704.
On or about September 09, 2022, Complainant and Respondent entered into a $10,394.00 contract for a 6-item scope of work regarding exterior painting of Complainant’s residence.
On September 12, 2022, Complainant tendered a $5,197.00 down payment to Respondent for the project.
On October 20, 2022, work on the project commenced.
On or about October 27, 2022, a $1,150.00 Change Order was executed for deck lids, windows, and doors, resulting in a remaining balance of $6,347.00 due on the contract.
Additional Evidence
In December 2022, Mr. Wilcoxen’s father received a terminal medical diagnosis. As a result, Mr. Wilcoxen’s attention to detail on the underlying project was adversely affected.
Closing Arguments
Respondent declined to provide a closing argument.
In closing, Complainant admitted that she moved forward with Complaint No. 2021-04472 because she felt “slighted” and wanted Respondent to “be held accountable.”
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.
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)(2)(a) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building code standards without consent of the owner.”
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]ll work shall be performed in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” Specifically, Ariz. Rev. Stat. § 32-1158 which provides that “Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection.
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.
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 not in dispute.
It is undisputed that the parties had a $10,394.00 painting contract, which was later increased to $11,544.00 after the execution of a $1,150.00 change order. It is also undisputed that some of the work Respondent performed on the project did not satisfy the Registrar’s minimum standards, and that Respondent did not provide Complainant with a written contract. It is further undisputed that Respondent failed to timely comply with the Registrar’s Directive.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has sustained his burden. The relevant and credible evidence of record establishes that, after collective bargaining between the parties due to Complainant’s dissatisfaction with Respondent’s workmanship, the contract was reduced by $5,347.00 and that Complainant paid for the contract in full. Respondent’s inaction and/or lack of performance and/or inadequate performance on complaint items 1 and 2 are excused due to the parties’ financial settlement agreement. Because Respondent successfully addressed complaint items 3-5, there are no outstanding complaint items at issue. Although violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(12); 32-1158, and 32-1154(A)(22) have been established, Respondent has also satisfactorily established an affirmative defense for each alleged violation.
Additionally, the record also reflects that no violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a) exists. No building permit(s) were pulled or required for this project, nor were any plan(s) drafted. It is unclear from the record why this statutory provision was cited against Respondent. Regardless, there is no evidence in the record that would tend to support finding Respondent in violation of this regulation.
It is a mystery why Complainant would feel “slighted” in this matter when she negotiated an approximate 46% reduction of her contract price, due to her dissatisfaction with Respondent’s work product. Her argument regarding “accountability” is rendered moot by her settlement acceptance.
Therefore, because Complainant has failed to establish Respondent’s alleged violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3), 32-1154(A)(12); 32-1158, and 32-1154(A)(22), no cause exists for the Registrar to discipline ROC License No. 332885.
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. 2021-04472 be closed and dismissed by the Registrar.
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 Order will be forty (40) days from the date of that certification.
Done this day, April 19, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically this day, April 19, 2023, to:
Martín Quezada, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Wilcoxen & Sons LLC, Respondent
1842 N. Highland Ave.
Tucson, AZ 85719
[email redacted]
Katharine Logsdon, Complainant
7840 N Paseo Del Norte
Tucson, AZ 85704
[email redacted]
By: OAH Staff