ALJDEC - Licensing

2022A-11699-CHC-ROC · Registrar of Contractors · 2023-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Harjinder Singh Dodd,

COMPLAINANT,

v.

Amazing Cabinet Refacing LLC

dba Castle Cabinets,

ROC License No. 308496,

RESPONDENT.

No. 2022A-11699-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 24, 2023 at 1:00 PM.

APPEARANCES: Harjinder Singh Dodd (“Complainant”) appeared with his witness Satinder Dodd. Daniel Edwards appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Amazing Cabinet Refacing LLC (“Respondent”).

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 Arizona Administrative Code (“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 September 28, 2016, the Registrar issued License No. 308496 Specialty Dual CR-60 Finish Carpentry contracting license to Respondent. Although the license had been renewed through September 30, 2022, it was suspended by operation of law for non-renewal on October 03, 2022. Jeffrey Scott Miller was listed as the Qualifying Party on the license prior to suspension, and disassociated from the license effective April 11, 2023. Charles St. George Kirkland was also listed as the Member for the license prior to suspension, but disassociated from the license effective April 10, 2023. Carolina Sophia Kirkland-Lopez is the only remaining Member on the license. Respondent’s address of record for the license is 3700 N. 36th Ave. Phoenix, AZ 85019. Respondent has an active $6,750.00 surety bond on the license issued by RLI Insurance Company, effective July 09, 2020. The license no prior disciplinary record, save one (1) settled or otherwise resolved complaint against it. There are two (2) open complaint listed against the license; one of which is presumed to be related to this matter.

On December 16, 2022, the Registrar received a 19-item complaint from Complainant against Respondent’s License No. 308496 alleging abandonment of their residential restoration construction project. The Registrar designated it Complaint No. 2022-11699 and assigned to Daniel Edwards (“Investigator Edwards”) for investigation.

On December 21, 2022, the Registrar issued a written request Complainant for a copy of the parties’ contract agreement and Complainant’s proof of payment(s). That same date Complainant provided the Registrar with invoices and a proposal from Respondent, and a copy of a $12,000.00 check Complainant tendered to Respondent towards their contract.

On December 22, 2022, the Registrar issued a Notice of Complainant letter to Respondent, which afforded Respondent ten (10) days to provide a written response. The Registrar did not receive a response from Respondent.

On January 12, 2023, Investigator Edwards issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 20, 2023, at 1:00 p.m. Correspondence was not returned as undeliverable to Respondent.

On January 20, 2023, Investigator Edwards inspected the work that had been performed on the project to date. Respondent was present. Investigator Edwards also reviewed the contract related correspondence between the parties, and. took 16 photographs of the project site. When he was finished, Investigator Edwards drafted his Inspection Notes. Ultimately, Investigator Edwards substantiated 12 of Complainant’s 19 complaint items based on his firsthand observations. Specifically, Investigator Edwards concluded Respondent’s workmanship on complaint items 7 and 9-19, failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.

On January 30, 2023, Investigator Edwards issued an Addendum Complaint Notification Letter to the parties, advising Complainant filed 9 additional complaint items with the Registrar in Complaint No. 2022-11699, and that as a result an addendum jobsite inspection would be scheduled for February 03, 2023, at 2:00 p.m. Correspondence was not returned as undeliverable to Respondent.

On February 03, 2023, Investigator Edwards inspected the addendum complaint items regarding the project. Respondent was not present. Investigator Edwards took 18 photographs of the project site. When he was finished, Investigator Edwards incorporated his findings into his Inspection Notes. Ultimately, Investigator Edwards substantiated 5 of Complainant’s 9 addendum complaint items based on his firsthand observations. Specifically, Investigator Edwards concluded that Respondent’s workmanship on addendum complaint items 20-21, 25, and 27-28 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.

On February 22, 2023, Investigator Edwards 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 March 10, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.

The Registrar’s Directive included the following restriction advisement:

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

(Emphasis added.)

On March 13, 2023, Investigator Edwards forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On March 15, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until March 30, 2023, to respond with its 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 March 24, 2023, the Registrar received Respondent’s timely Answer whereby Troy Daniel Roberts, Esq., Counsel for Respondent, pointedly remarked that Respondent was “no longer in business” and that its license “has been suspended for some time.”

On March 29, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on May 24, 2023. Per the April 17, 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)(1)

Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 3: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on his own behalf and called investigator Edwards and his wife Satinder Dodd as witnesses. 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 May 04, 2021, the parties entered into a custom cabinetry agreement for Respondent to build and install cabinets in Complainant’s butler’s pantry and kitchen, bar, 5 bathrooms, and laundry room located at 27755 N. 37th Ave. Phoenix, AZ 85087 for $47,976.95.

Complainant paid Respondent $36,000.00 towards their agreement.

On December 07, 2021, work on the project commenced. Work on the projected stopped sometime in September 2022.

On January 09, 2023, Mr. Roberts advised the Registrar that Respondent had just received a copy of Complaint No. 2022-11699 due to “holidays and vacations,” and asked for a brief extension to investigate the matter.

On January 09, 2023, Mr. Roberts advised the Registrar that Respondent “went out of business last year” and that its license was “revoked back in October 2022.” Mr. Roberts further inquired whether the Registrar had any jurisdiction over Respondent.

On January 12, 2023, Investigator Edwards replied to Mr. Roberts and advised that Respondent’s license was suspended, not revoked, and that the Registrar maintained jurisdiction over its licensees regardless of license status, pursuant to Ariz. Rev. Stat. § 32-1155(D).

On February 03, 2023, Mr. Roberts advised Investigator Edwards that Respondent would not participate in the addendum inspection. Mr. Roberts also noted that Complainant was absolved of the outstanding contract balance due to Respondent’s dissolution.

On February 23, 2023, Mr. Roberts advised Investigator Edwards that although Respondent was in receipt of the Directive, “work cannot be completed because [Respondent] is out of business and its ROC license is suspended.”

Additional Evidence

Per Investigator Edwards, due to the status of License No. 308496 during the Directive’s compliance period, Respondent only means of addressing it was to either enter into a settlement agreement with Complainant or reinstate its license and perform the work or subcontract it out to an appropriately licensed subcontractor. Respondent chose not to select any of its viable options.

Closing Arguments

In closing, Complainant argued that he tried to work with Respondent through all of the issues they had on the project, but that Respondent ultimately stopped showing up to work and refused to return. Complainant iterated repeatedly that he wishes to have his substantiated complaint items, including substantiated addendum complaint items, completed and/or corrected.

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)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

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 not in dispute.

It is undisputed that the parties had a $47,976.95 residential custom cabinetry contract project, and that Complainant paid Respondent $36,000.00 towards that agreement. It is also undisputed that Respondent did not finish the project, and that some of the work on the project Respondent did complete fell below the Registrar’s minimum standards. 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 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. Respondent’s absence from this administrative proceeding is, however, a factor in aggravation. The evidentiary record in this matter reflects that Respondent failed to complete the underlying project at issue, never returned Complainant’s payments; in whole or in part, and failed to address the Registrar’s Directive without any affirmative defense(s) for its inaction. Mr. Robert’s implied assertions that Respondent was unable or incapable of acting due to the status of its business and/or license were incorrect, as were his suggestions that the Registrar lacked subject matter jurisdiction over License No. 308496. Because there is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project, Respondent has failed to sustain his burden of persuasion in this matter.

Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3), and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense in this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Amazing Cabinet Refacing LLC, ROC License No. 308496, be revoked.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $250.00 in certified funds as a civil penalty in this matter.

IT IS FURTHER RECOMMENDED no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A), unless Respondent tenders payment of any outstanding prior civil penalty.

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, June 07, 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]

Amazing Cabinet Refacing LLC, Respondent

dba Castle Cabinets

3700 N. 36th Ave.

Phoenix, AZ 85019

Harjinder Singh Dodd, Complainant

27755 N. 37th Ave.

Phoenix, AZ 85083

By: OAH Staff