ALJDEC - Licensing
2023A-00769-CHC-ROC · Registrar of Contractors · 2023-07-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Daniel Behrens DGB Enterprises Inc.,
COMPLAINANT,
v.
Piña's Concrete LLC
ROC License No. 329747,
RESPONDENT.
No. 2023A-00769-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 18, 2023 at 1:00 PM.
APPEARANCES: Daniel Behrens appeared on behalf of Behrens DGB Enterprises Inc. (“Complainant”). Nelson Mixon, Esq. appeared on behalf of Piña’s Concrete LLC (“Respondent”). Cliff Corlett appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Christine Piña, José Piña-Hernandez, Roberto Piña-Hernandez, Juan Piña, Glen Davis, Joe Campbell, and Christy Kochen observed.
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 July 17, 2020, the Registrar issued License No. 329747 Specialty Dual CR-9 Concrete contracting license to Respondent. The license is renewed through July 31, 2023. Christine Nicole Piña is listed as the Qualifying Party and Member on the license. Respondent’s address of record for the license is 931 La Jolla Dr. Bullhead City, AZ 86442. Respondent has an active $10,000.00 surety bond on the license issued by American Contractors Indemnity Company. The license no prior disciplinary record, save one (1) settled or otherwise resolved complaint against it. There is one (1) open complaint listed against the license; which is presumed to be related to this matter.
On January 20, 2023, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 329747 alleging poor work of their residential concrete project. The Registrar designated it Complaint No. 2023-00769 and assigned to Cliff Corlett (“Investigator Corlett”) for investigation.
On January 24, 2023, Investigator Corlett issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on February 07, 2023, at 9:30 a.m. Correspondence was not returned as undeliverable to Respondent.
On February 07, 2023, Investigator Corlett inspected the work that had been performed on the project to date. Respondent was present. Investigator Corlett also reviewed the contract-related correspondence between the parties, and. took 42 photographs of the project site. When he was finished, Investigator Corlett drafted his Inspection Notes. Ultimately, Investigator Corlett derived five (5) separate and distinct complaint items from Complainant’s narrative submission to the Registrar, of which, he substantiated 2 based on his firsthand observations. Specifically, Investigator Corlett concluded Respondent’s workmanship on complaint items 3 and 5 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On March 06, 2023, Investigator Corlett 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 31, 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.
On April 14, 2023, Investigator Corlett issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct a compliance inspection for the Registrar’s Directive on April 20, 2023, at 10:30 a.m. Correspondence was not returned as undeliverable to Respondent.
On April 20, 2023, Investigator Corlett inspected Respondent’s attempt(s) to perform corrective work on the project. Respondent was present. Investigator Corlett also reviewed the contract-related correspondence between the parties, and. took 29 photographs of the project site. Ultimately, Investigator Corlett concluded that Respondent’s workmanship on complaint items 3 and 5 did not satisfy the Registrar’s minimum standards.
On May 01, 2023, Investigator Corlett forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On May 03, 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 May 18, 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 May 18, 2023, the Registrar received Respondent’s timely Answer whereby Counsel for Respondent, pointedly argued as follows:
Complainant lacked standing to file a complaint with the Registrar.
Respondent’s work complied with industry standards.
Respondent took appropriate corrective action in response to the Registrar’s Directive.
Respondent’s work was subject to neglect, modification, or abnormal use.
Complainant failed to reasonably cooperate with Respondent while it attempted to perform corrective work.
Respondent was found out of compliance during the compliance jobsite inspection for items not listed for correction in the Registrar’s Directive.
On May 22, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 18, 2023. Per the May 31, 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
Complainant called Daniel Behrens and investigator Corlett 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 June 06, 2022, Complainant, dba Blue Mirage Pools and Spa, entered into a $14,850.00 contract with Respondent for concrete pouring at 231 Swanson Ave. Unit 214 Lake Havasu, AZ 86403. Specifically, Respondent was hired to pour concrete for a pool, spa, decking, and patio.
Complainant tendered $18,524.00 to Respondent towards the project.
Work on the project commenced on or about August 22, 2022, and stopped or was otherwise completed on or about September 16, 2022.
Complainant filed Complaint No. 2023-00769, in large part, to appease the customer related to the underlying contract, as Mr. Behrens was desirous of obtaining documentation from the Registrar to provide his customer that would show the work at issue met workmanship standards.
Additional Evidence
Per Investigator Corlett, contracting is not an exact science and is subjectively “artful.”
After the Citation was issued Respondent performed additional corrective work on the underlying project. During his subsequent prehearing jobsite inspection on July 13, 2023, Investigator Corlett determined that Respondent had performed sufficient corrective work on complaint items 3 and 5 to meet the Registrar’s minimum workmanship standards.
Closing Arguments
Complainant declined to provide a closing argument.
In closing, Respondent argued that had taken all reasonable measures to comply with the Registrar’s Directive, but opined that the outstanding complaint items at issue were due to an unspecified “lack of cooperation” by Complainant. Respondent further argued that the Registrar should forgo discipline of its license, as it had acted in good faith to execute the terms of the parties’ agreement.
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)(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.
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 concrete construction contract that Complainant paid in full. It is also clear that some of Respondent’s workmanship on the project did not satisfy the Registrar’s minimum standards. It is further clear 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. None of the assertions Respondent made in its Answer to the Registrar’s Citation are supported by the record. Respondent’s alluding to a “lack of cooperation” on Complainant’s part is weightless in the face of Investigator Corlett’s testimony that an allegation of a denial of access was never received from Respondent. However, because the record establishes that Respondent performed corrective work adequate to satisfy the Registrar’s minimum workmanship standards for complaint items 3 and 5, though untimely and out of compliance with the Registrar’s Directive, Respondent has sustained its burden of persuasion in establishing an affirmative defense to discipline in this matter.
Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Complaint No. 2023-00769 be closed as settled or otherwise resolved.
IT IS FURTHER RECOMMENDED that the Registrar decline to impose discipline against ROC License No. 329747 in this matter.
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, July 31, 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]
Nelson A. F. Mixon, Esq.
Holden Willits PLC, Counsel for Respondent
2 N. Central Ave., Ste. 2000
Phoenix, AZ 85004
[email redacted]
Daniel Behrens DGB Enterprises Inc., Complainant
c/o Daniel Behrens
P.O. Box 2057
Lake Havasu, AZ 86405
[email redacted]
By: OAH Staff