ALJDEC - Licensing
2022A-10180-CHC-ROC · Registrar of Contractors · 2023-02-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Julie M Ackerman,
COMPLAINANT,
v.
Chad Everett Head
dba A Head Plumbing
ROC License No. 254234,
RESPONDENT.
No. 2022A-10180-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 23, 2023 at 1:00 PM.
APPEARANCES: Julie Ackerman (“Complainant”) appeared on her own behalf with Tyler Ackerman as a witness. Chad Everett Head (“Respondent”) appeared on his own behalf. Mike Wiskow appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
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 Arizona Registrar of Contractors (“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 13, 2009, the Registrar issued License No. 254234 Specialty Dual CR-37 Plumbing contracting license to Respondent. The license is in good standing and has been renewed through April 30, 2023. Chad Everett Head is listed as the Qualifying Party/Owner on the license. Respondent’s address of record for the license is 1229 E. Maryland Ave. Unit A Phoenix, AZ 85014. Respondent has an active $6,750.00 surety bond on the license issued by RLI Insurance Company, effective April 13, 2009. The license has no prior disciplinary record with the Registrar. There is one (1) open complaint against the license, which is presumed to be related to this matter.
On November 03, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 254234 alleging poor workmanship regarding a $6,000.00 residential tub, tile, and water filtration system project. Attached was Complainant’s timeline of events, proof of payment, and a description of the project. The Registrar designated it Complaint No. 2022-10180 and assigned to Mike Wiskow (“Investigator Wiskow”) for investigation.
On November 15, 2022, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by Investigator Wiskow on November 30, 2022, at 12:00 p.m.
On November 30, 2022, Investigator Wiskow inspected the work that had been done on the project to date. He also took 4 photographs of the project. When he was finished, Investigator Wiskow drafted Jobsite Inspection Notes. Ultimately, Investigator Wiskow derived 2 complaint items from Complaint No. 2022-10180, of which he substantiated both. Specifically, Investigator Wiskow determined that complaint items 1 and 2 constituted poor or incomplete work and failed to meet the Registrar’s minimum workmanship standards, and/or constituted abandonment of the project.
On November 30, 2022, Investigator Wiskow issued a Warning Letter to Respondent to advise that Respondent’s work on the underlying project required possession of an R-48 Ceramic Tile License that Respondent did not possess during the relevant time period, in violation of Ariz. Rev. Stat. § 32-1154(A)(16), which could result in discipline against Respondent’s license including suspension or revocation.
On November 30, 2022, Investigator Wiskow issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in his written contracts, including his contract with Complainant.
On December 02, 2022, although he had substantiated both of Complainant’s complaint items, Investigator Wiskow issued a Written Directive from the Registrar (“First Directive”) to Respondent in which he only identified Complainant’s first complaint item as being substantiated against Respondent. Respondent was put on notice that it had until 5:00 p.m. on December 19, 2022, to notify the Registrar of its compliance with the First Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E).
On December 06, 2022, to correct his unintentional omission of Complainant’s second complaint item, Investigator Wiskow issued a revised Written Directive from the Registrar (“Directive”) to Respondent clarifying that he had substantiated both of Complainant’s abandonment and workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on December 22, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E).
Notably, regarding the tile component in complaint item 1, Investigator Edwards found that the installation of tile was beyond the scope of Respondent’s CR-37 license. As such, Respondent was advised that “[Mr. Head] may not perform or hire other contractors to perform work that is outside the scope of your license.”
On December 20, 2022, Investigator Wiskow escalated Complaint No. 2022-10180 to the Registrar’s legal department with citation recommendations for violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3), 32-1154(A)(12), 32-1154(A)(16), and 32-1154(A)(22).
On December 21, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(a); 32-1154(A)(12); 32-1158; 32-1154(A)(16); and 32-1154(A)(22). Respondent was given until January 05, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.
On January 05, 2023, the Registrar received Respondent’s timely written Answer. Respondent offered the following explanation, in pertinent parts:
[Respondent] was under contract with [Complainant] to perform plumbing only, we were to remove the existing tub and surround, install a new tub, install the shower valve with a hand held sprayer, we were to return to install plumbing trim once the tile was completed, I agreed to purchase and install a NUVO water softner in the garage at the time we were to return to do the shower trim, when we removed the old tub we found she had some corroded copper lines and needed to move the copper plumbing in the wall to allow for the new tub to be installed, also the washer valves were corroded and we replaced them, we also replaced the main shut of to her home from a gate valve to a ball valve, the tub she picked out was larger than the old one so we had to move the plumbing for that as well, she was to have the tile done by another contractor, [Respondent] never agreed to do the tile.
On January 04, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on February 23, 2023. Per the January 18, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:
Charge 1: 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 3: A.R.S. § 32-1154(A)(16)
Charge 4: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf, called Investigator Wiskow as a witness, and submitted Exhibit 1. Chad Head testified on behalf of Respondent. The Registrar’s agency file (“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 5439 W. Topeka Dr. Glendale, AZ 85308.
On or about July 11, 2022, the parties entered into a verbal contractual agreement whereby Respondent agreed to demo Complainant’s guest bathroom tub and existing surround and replace it with a new tub and tile work, for $4,000.00. Respondent also agreed into install a new water filtration system in Complainant’s garage for $2,000.00.
On or about July 13, 2022, Complainant tendered a $3,000.00 cash deposit to Respondent towards the contract.
On July 20, 2022, demo of the guest bathroom tub commenced. Work was sporadically performed through August 15, 2022. Complainant’s step-son observed Mr. Head cut and place tile firsthand.
On or about August 01, 2022, Complainant tendered an additional $2,000.00 payment to Respondent towards the contract.
From August 28, 2022, to September 12, 2022, the parties corresponded with one another in an attempt to schedule the outstanding work on the project, but were unsuccessful.
On November 15, 2022, in response to the Jobsite Inspection Notification letter issued by Investigator Wiskow the same date, Mr. Head advised the following, in pertinent part:
I have never seen this complaint and have not been given the opportunity to respond to it, I will not be in town on November 30th and being that the homeowner had written things that are not true, I would like for my attorney to look this over, I completed the plumbing in the bathroom, please let me know what other options there are.
Shortly thereafter on November 15, 2022, Investigator Wiskow responded to Mr. Head as follows:
The complaint was attached and you have 15 days to look at the complaint items if you would like to. Were you also contracted to do the tile work?
Mr. Head did not respond to the inquiry or submit a request to inspect the alleged deficiencies in his work on the project.
On December 20, 2022, Complainant asked Investigator Wiskow “Is it my responsibility to communicate with [Respondent] anymore?” Complainant also advised that the water filtration system had not been installed, nor had the tub portion of the project been addressed by Respondent. Complainant further advised that she had not been in contact with Respondent since December 09, 2022, after they had exchanged text messages regarding scheduling corrective work but failed to settle on a date.
Though Mr. Head was copied on Investigator Wiskow’s December 20, 2022, advisement that he would escalate Complainant No. 2022-10180 to the Registrar’s Legal Department for the setting of an administrative hearing, Respondent did not reply.
Closing Arguments
In closing, Respondent denied working outside the scope of its license.
In closing, Complainant argued that her burden of proof had been met regarding both portions of her verbal agreement with Respondent, and that she had established Respondent’s abandonment and poor work on her project.
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 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]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.”
Ariz. Rev. Stat. § 32-1158(A) provides that a contract between a contractor and property owner amounting to more than $1,000.00 must contain the following information in writing:
The name of the contractor and the contractor's business address and license number.
The name and mailing address of the owner and the jobsite address or legal description.
The date the parties entered into the contract.
The estimated date of completion of all work to be performed under the contract.
A description of the work to be performed under the contract.
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.
The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
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.
That the property owner has the right to file a written complaint with the Registrar for an alleged violation of Ariz. Rev. Stat § 32-1154(A). The contract shall contain the Registrar's telephone number, website address, and shall state that complaints must be made within the applicable time period as set forth in Ariz. Rev. Stat § 32-1155(A). The information must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor.
Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, as follows:
[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.
While it is unclear why the Registrar did not include an alleged violation of Ariz. Rev. Stat. § 32-1154(A)(1) in its Citation as Investigator Wiskow had recommended, the remaining material facts in the case at bar are clear.
The relevant and credible evidence of record establishes that the parties had a 2-part $6,000.00 contracting agreement that Complainant substantially paid on, where Respondent failed to issue a written contract for in violation of Ariz. Rev. Stat. §§ 32-1154(A)(12); 32-1158. The record also establishes that Respondent knowingly exceeded the scope of its license by performing tile work on the project in violation of Ariz. Rev. Stat. § 32-1154(A)(16). The record also establishes that Respondent failed to complete the project per the parties’ agreement, and performed poorly on portions of the project that were addressed in violation of Ariz. Rev. Stat. § 32-1154(A)(3); namely Ariz. Admin. Code R4-9-108(a).
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 complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent sustained his burden. Respondent was to be afforded until December 22, 2022, to remediate all deficient work within the scope of its license, or come to some other amenable agreement with Complainant, and enter into a settle agreement with Complainant for the tile work. The record clearly reflects that Complaint No. 2022-10180 was escalated on December 20, 2022, which deprived Respondent of three (3) days to address the Registrar’s Directive. While Mr. Head’s historic behavior was certainly not indicative of performance and there is no evidence to suggest 3 days was a sufficient amount of time in which to have corrective wok performed in line with the Registrar’s minimum workmanship requirements, Respondent should have absolutely been afforded until December 22, 2022, to attempt to comply with the Registrar’s Directive, including the possibility of reaching a financial settlement with Complainant. Because insufficient time was allotted prior to the issuance of the Registrar’s December 21, 2022, Citation, no violation of Ariz. Rev. Stat. § 32-1154(A)(22) exists.
As such, Complaint No. 2022-10180 must be remanded to the Registrar so that Respondent may be afforded three (3) days to address the underlying December 06, 2022, Directive, in accordance with Ariz. Rev. Stat. § 32-1154(A)(22) and applicable Due Process rights held in Title 32, Article 3, of the Ariz. Rev. Stat.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that, per Ariz. Admin. Code R2-19-111(4), Complaint No. 2022-10180 be remanded to the Registrar for further action.
IT IS FURTHER RECOMMENDED that the Registrar reissue a Directive for Complaint No. 2022-10180 that affords Respondent no less than three (3) days to address substantiated complaint items identified in Investigator Mike Wiskow’s revised November 30, 2022, Jobsite Inspection Notes, in accordance with Ariz. Rev. Stat. § 32-1154(A)(22).
IT IS FURTHER ORDERED that the Registrar’s Citation, issued December 21, 2022, be quashed.
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 40 days from the date of that certification.
Done this day, February 28, 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]
Chad Everett Head, Respondent
dba A Head Plumbing
1229 E. Maryland Ave. Unit A
Phoenix, AZ 85014
[email redacted]
Julie M Ackerman, Complainant
5439 W. Topeka Dr.
Glendale, AZ 85308
[email redacted]
By: OAH Staff