HOA - ALJDEC decisions

2023A-00464-CHC-ROC · Registrar of Contractors · 2023-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dennis W. Morris

COMPLAINANT,

Conroy Construction, LLC

License No. ROC 215082,

RESPONDENT.

No. 2023A-00464-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 17, 2023

APPEARANCES: Complainant Dennis W. Morris represented himself. Dan Conroy represented Respondent Conroy Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Conroy Construction, LLC holds license number 21508 issued by the Arizona Registrar of Contractors (Registrar).

2. Dan Conroy is Respondent’s qualifying party.

3. On or about March 24, 2021, Complainant Dennis W. Morris and Respondent entered into a residential construction contract wherein, Respondent would install a garage at Complainant’s property for the amount of $116,000. See the Registrar’s Administrative Record, pgs. 46 and 47.

4. The contract provided that work would start after the contractor obtained the approved set of work permits. The estimated date of completion under the contract was six months.

5. Complainant agreed in writing to pay an additional 10% of the contract price.

6. On or about January 9, 2022, Respondent began work under the contract.

7. Complainant paid Respondent $128,525.00 by October of 2022. See the Registrar’s Administrative Record, pgs. 48-50.

8. On or about January 9, 2023, Complainant filed a complaint with the Registrar alleging that Respondent failed to complete the project.

9. On or about February 9, 2023, Registrar Investigator Cliff Corlett conducted a job-site inspection. Investigator Corlett substantiated complaint items 4 through 12.

10. On February 21, 2023, the Registrar issued a Directive to Respondent directing Respondent to properly complete the contracted work with regard to complaint items 4 through 12, no later than 5:00 p.m. on March 31, 2023. See the Registrar’s Administrative Record, pgs. 28 to 34.

11. On February 28, 2023, Respondent notified Investigator Corlett by e-mail that he would complete the Directive because payments were due. See the Registrar’s administrative record, pg. 37.

12. On March 9, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. sections 32-1154(A)(1) and (22).

13. Respondent filed a timely answer to the Citation.

14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

15. A hearing was held on May 17, 2023.

16 At hearing, Complainant testified on behalf of himself. Mr. Conroy testified on behalf of Respondent. Investigator Cliff Corlett regarding his investigation of the complaint and the issuance of the Directive.

17. Complainant explained that Respondent abandoned the job without valid justification. Complainant contended that he has already paid Respondent more than the contract price and Respondent refused to complete the job.

18. Mr. Conroy explained that he did not complete the work because Complainant owes him an additional $10,000. Mr. Conroy stated that before the written contract was signed, he explained to Complainant that materials may increase.

19. However, Mr. Conroy provided no written change orders to Complainant.

Additionally, there was no provision in the contract for increases in the contract amount. 20. Mr. Conroy alleged that Complainant stated that he would “take care” of

extra costs.

21. Complainant refuted Mr. Conroy’s allegation that Complainant agreed to pay for extra costs.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The weight of the evidence presented at hearing shows that Complainant paid Respondent more than the contract price.

The preponderance of the evidence shows that Respondent abandoned the project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

10. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive without valid justification.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 215082 of Conroy Construction, LLC shall be suspended for a period of three calendar days.

It is further recommended that the Registrar require Respondent Installations, LLC to pay the sum of $500.00 as a civil penalty.

It is further recommended that if Conroy Construction, LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Conroy Construction, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Conroy Construction, LLC, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Conroy Construction, LLC tenders payment of any outstanding prior civil penalty.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000Done this day, June 6, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile June 6, 2023 to:

Martín Quezada

Director

Registrar of Contractors

[email redacted]

Conroy Construction LLC

[email redacted]

Dennis W Morris

[email redacted]

Cliff Corlett

[email redacted]

By: OAH Staff