ALJDEC - Licensing
2023A-01461-CHC-ROC · Registrar of Contractors · 2023-11-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Waylon Gates
COMPLAINANT.
v.
J&K Construction Builders LLC
License No. ROC 338887,
RESPONDENT.
No. 2023A-01461-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 7, 2023
APPEARANCES: Complainant Waylon Gates represented himself. Joan Flores represented Respondent J&K Construction Builders, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On September 21, 2023, the Arizona Registrar of Contractors (Registrar)
issued a Notice of Hearing setting the above-entitled matter for hearing on November 7, 2023. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
2. On or about November 7, 2022, Respondent J&K Construction Builders, LLC. agreed to remodel the home of Complainant Waylon Gates, for the amount of
$11, 200.00.
3. Joan Flores is Respondent’s qualifying party.
4. On or about November 12, 2022, Respondent started work.
5. On or about December 14, 2022, Respondent’s subcontractor stopped working on the project after Complainant used profanity with the contractor and called the contractor lazy. Complainant ordered the subcontractor to leave his home.
6. Respondent stopped work on or about December 14, 2022.
7. On or about February 6, 2023, Complainant filed a complaint with the Registrar alleging abandonment and poor work on the part of Respondent.
8. On or about June 13, 2023, Investigator Cliff Corlett conducted a job-site inspection.
9. On or about June 29, 2023, the Registrar issued a Directive to Respondent, directing Respondent to correct Complaint Item 6 by appropriate means, no later than July 21, 2023. The Directive provided, in relevant part, as follows:
Compliance Item: 6 - Backsplash sections behind stove are
mismatched and there is a crack in the material.
Investigator’s Observation: There is a noticeable color variation between the panels and the joint is poorly made. Additionally there is a crack in the backsplash material just above the left rear corner of the stove.
RESPONDNET SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS MATCHING THE SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Errors in original.
10. On July 13, 2023, Mr. Flores notified Investigator Corlett by e-mail that he would have an installer scheduled to go to Complainant’s home on July 17, 2023 to make repairs. Complainant was copied on the message.
11. On July 14, 2023, Mr. Flores sent an e-mail to Complainant requesting access to his home beginning July 17, 2023, to make the repairs required under the Directive.
12. Complainant did not respond to Mr. Flores’s e-mail until July 17, 2023.
13. On July 17, 2023, Complainant notified Mr. Flores by e-mail that he was out of town and that he would not be home until the end of the week. Subsequent to July 17, 2023, Complainant allowed Respondent to make repairs on August 4, 2023. However, Complainant informed Respondent that the installers would have to finish that day no later than 5:00 p.m. The installers were unable to complete the job by 5:00 p.m., and due to their schedule, their next available opening was August 11, 2023. Although Respondent notified Complainant that the installers were available December 11, 2023, Complainant did not allow Respondent to return to make the repairs.
14. On or about August 17, 2023, the Registrar issued a Citation against Respondent’s license. Through the Directive, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) - R4-9-108(A); A.R.S. § 32-1154(A)(22).
15. Respondent filed a timely answer to the Citation.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. A hearing was held on November 7, 2023.
18. At hearing, Complainant testified on behalf of himself. Complainant alleged that Respondent performed poor work and failed to comply with the Directive. Respondent’s qualifying party, Joan Flores, testified no behalf of Respondent.
Mr. Flores admitted that the subcontractor that he used was not licensed. However.
Mr. Flores explained that he was not aware that the subcontractor’s license was not active at the time that he hired him to complete the project for Complainant. Registrar Investigator Cliff Corlett testified consistently with his job-site inspection notes and the Directive.
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.” A.R.S. § 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.” A.R.S. § 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 Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
The preponderance of the evidence shows that Complainant denied Respondent reasonable access to his home to correct the items listed in the Directive by July 21, 2023. As a result, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108(a), and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
Pursuant to A.R.S. § 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, November 27, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
J&K Construction Builders LLC
[email redacted]
Waylon Gates
[email redacted]
Cliff Corlett
Registrar of Contractors
[email redacted]
By: OAH Staff