ALJDEC - Licensing
2022A-11816-CHC-ROC · Registrar of Contractors · 2023-05-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dragoslav Arnautovic Yugo Flooring LLC,
COMPLAINANT,
v.
AZ SUNNYSTATE GLASS LLC
ROC License No. 325171,
RESPONDENT.
No. 2022A-11816-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 01, 2023 at 1:00 PM.
APPEARANCES: Dragoslav Arnatovic appeared on behalf of Dragoslav Arnatovic Yugo Flooring LLC (“Complainant”). Dwayne Bridges appeared on behalf of AZ Sunnystate Glass LLC (“Respondent”). John Peru, Jr. 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 July 09, 2019, the Registrar issued License No. 325171 Specialty Dual CR-65 Glazing contracting license to Respondent. The license is currently active and renewed through November 30, 2024. Dwayne M. Bridges is the Qualifying Party and Member on this license. Respondent’s address of record for the license is 2442 W. Acoma Dr. Phoenix, AZ 85023. Respondent has two (2) active $6,750.00 surety bonds on the licensed issued by Old Republic Surety Company, effective June 13, 2019, and July 25, 2022, respectively. The license no prior disciplinary record. There is one open complaint listed which is presumed to be related to this matter.
On or about December 28, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 325171 alleging poor workmanship of their sliding glass door installation project. The Registrar designated it Complaint No. 2022-11816 and assigned to John Peru (“Investigator Peru”) for investigation.
On January 04, 2023, Investigator Peru issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 24, 2023, at 11:30 a.m.
On January 24, 2023, Investigator Peru inspected the work that had been performed on the project to date. He also conducted a review project-related correspondence exchanged between the parties, including the construction contract and proof of payments, and took 7 photographs of the project site. Respondent was not present. Respondent was not present. When he was finished, Investigator Peru drafted his Inspection Notes. Ultimately, Investigator Peru derived a single complaint item from the narrative complaint submitted to the Registrar, and he was able to substantiate it based on his firsthand observations. Specifically, Investigator Peru determined “the Sliding Glass Panel door is not correctly installed.” [sic] He noted that the third panel of the door did not close completely, the tope center of the door frame was bowed downwards, the threshold tracks were exposed without appropriately installed hardware, and the jamb channels were exposed without appropriately installed hardware. Investigator Peru further noted that “It is the Contractor’s responsibility to properly install all supplied/required components. Additionally, the Contractor is responsible for securing these supplied/required components through the duration of the project.” Investigator Peru concluded that complaint item failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On February 02, 2023, Investigator Peru issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on February 20, 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 February 22, 2023, Investigator Peru forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On February 23, 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 March 10, 2023, to respond with his Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On March 09, 2023, the Registrar received Respondent’s Answer whereby Respondent noted in pertinent part, “In response to 4 panel door, I have paid and ordered parts when I receive them I will schedule and do my up most to fix all issues!” (All errors in original.)
On March 10, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on May 01, 2023. Per the March 29, 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
Dragoslav Arnatovic and Investigator Peru testified on behalf of Complainant. Dwayne Bridges 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 16006 W. Ironwood Dr. Waddell, AZ 85355.
On or about March 04, 2022, Complainant and Respondent entered into a $900.00 labor0only contract for the installation of a multi-panel sliding glass door, to be executed at Complainant’s residence.
Complainant paid the contract in full.
On March 04, 2022, work on the project commenced and stopped later that same date.
Mr. Bridges testified that he had not been absolutely certain about how to install the multi-panel door, so he needed additional time to confer with the manufacturer. When he returned to the site on an unknown date, parts that had been left behind had been damaged by a stucco tradesman. As a result, Mr. Bridges had to order new parts so that the installation could be completed.
On an unknown day, about two weeks after the expiration of the Directive’s compliance period, Respondent performed corrective work at the project site with Complainant’s permission.
Mr. Bridges had not understood that corrective work needed to be complete by February 20, 2023, and instead believed that he just needed to order the parts necessary to finish the project by that date.
Mr. Bridges put the molding “back the way it was” because he could not reach Complainant, the General Contractor on the project, for guidance.
On April 05, 2023, Investigator Peru issued a Prehearing Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on April 28, 2023, at 11:30 a.m.
On April 28, 2023, Investigator Peru inspected the corrective work that had been performed on the project to date.
Ultimately, Investigator Peru determined that all substantiated complaint issued had been satisfactorily remediated to satisfy the Registrar’s minimum workmanship standards. Investigator Peru also observed minor cosmetic stucco damage to the exterior of Complainant’s residence, tiny surface scratches to the finish of the door, and sealant remnants between the top header and the door, and attributed the damage to Respondent’s conduct during repairs as no such damage was visible during his prior inspection.
Closing Arguments
Both parties declined to present closing argument before the Tribunal.
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)(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.
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 that the parties had a $900.00 labor-only contract, which Complainant paid in full. It is also clear that Investigator Peru determined that some of the work Respondent performed on the project did not satisfy the Registrar’s minimum standards. It is also clear that both parties failed to secure the door-related materials on site prior to Respondent’s departure March 04, 2023. 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. 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. Bridges admitted he did not comply with the Directive due to lack of understanding, not intentional disregard or Respondent’s unwillingness to submit to regulation by the Registrar. Mr. Bridges admitted that he was not sure how to install the door at issue at the onset of the project, which lead to delays. Thus, the evidentiary record in this matter reflects that Respondent failed to timely complete the underlying project at issue and had no affirmative defense(s) for doing so, but did finish his work to the Registrar’s satisfaction.
The Tribunal finds that Complainant has not established Respondent’s alleged violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3) by a preponderance of the evidence. Complainant has, however, established Respondent’s violation(s) of Ariz. Rev. Stat. § 32-1154(A)(22) by a preponderance of the evidence, which establishes grounds for the Registrar to take disciplinary action against ROC License No. 325171. Notably, because the infraction is de minimis considering Complaint No. 2022-11816 has been remediated, discipline is not recommended in this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that Complaint No. 2022-11816 be 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 Final Order will be forty (40) days from the date of that certification.
Done this day, May 09, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
AZ SUNNYSTATE GLASS LLC, Respondent
2442 W. Acoma Dr.
Phoenix, AZ 85023
[email redacted]
Dragoslav Arnautovic Yugo Flooring LLC, Complainant
14546 W. Lisbon Ln.
Surprise, AZ 85379
[email redacted]
By: OAH Staff