ALJDEC - Licensing
2024A-03190-CHC-ROC · Registrar of Contractors · 2024-10-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Paul C Gamache,
COMPLAINANT,
v.
Fripps and Associates Inc.,
License No. ROC 327913,
RESPONDENT.
No. 2024A-03190-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 1, 2024.
APPEARANCES: Paul C. Gamache appeared, representing himself. George R. Ripps appeared on behalf of Fripps and Associates Inc.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet).
_____________________________________________________________________
FINDINGS OF FACT
Fripps and Associates Inc. (Respondent) is the holder of KB-2 Dual Residential and Small Commercial Contractor License No. 327913 issued by the Arizona Registrar of Contractors (Registrar or ROC) on February 28, 2020.
On or about December 29, 2020, Paul C. Gamache (Complainant) signed a contract with Respondent with regard to the construction of a new home. Respondent began work in 2021.
On or about March 15, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work and incomplete work with respect to the project. Complainant indicated that work on the project was last performed on March 9, 2024.
The Registrar’s Investigator Cliff Corlett scheduled and rescheduled a jobsite inspection. Investigator Corlett conducted a jobsite inspection on July 18, 2024. The Investigator’s jobsite notes indicate that Respondent was not present at the inspection.
Investigator Corlett inspected the complaint and, after the jobsite inspection, he prepared jobsite notes verifying the only remaining item, Complaint item #1 regarding the flooring. Because Respondent’s license was already revoked (as of February 21, 2024), Investigator Corlett was unable to issue a written directive for corrective action. The job site notes indicate:
Complaint Item: 1 - Improperly installed wood flooring, numerous defects.
Investigator’s Observation: Numerous dings, dents, chips, scratches, gaps between planks and gaps in planking at door frames. Complainant states that Respondent was aware of these defects from move-in date. Respondent has been supplying new flooring materials and labor to replace damaged flooring. It is unclear if floor installer is a licensed contractor.
Respondent’s license is REVOKED since 02-21-2024.
Since the license is REVOKED the Registrar cannot direct the Respondent to perform any corrective work. The case is being forwarded to the ROC legal department for review and Citation.
On July 24, 2024, the Registrar issued a Citation against Respondent, charging possible violations: A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).
On August 6, 2024, Respondent emailed an Answer to the Citation, stating as follows:
We are responding to the Citation and Complaint #2024-03190. Per the complaint Line items:
1.) Deny this claim
2.) Fixed by the manufacturer as it was a manufacturer defect.
3.) Fixed by the manufacturer as it was a manufacturer defect.
4.) Deny this claim. The correct garage doors were installed.
6,7,8.9.) Deny all these claims.
10,11,12,13.) Deny all these claims.
14.) Deny this claim
16,17.) These items are not a workmanship issue.
The matter was not completely resolved by the parties prior to the administrative hearing.
At hearing, Complainant related the chronology of the matter, noting the belated and multiple efforts of Respondent to address the flooring issues. Complainant indicated that Respondent had made settlement offers that simply would not completely address and/or resolve the matter.
At the hearing, Respondent related his chronology and his final efforts to resolve the matter by having another licensed contractor to install the Complainant’s replacement flooring that had been purchased.
Since the date of the hearing, neither party has provided documentation that the matter was resolved informally between the parties.
Administrative notice is taken of Respondent’s license record on October 21, 2024, which documents that Respondent’s License No. 327913 is revoked. Respondent’s licensure records reflects that the instant complaint is the only remaining open complaint against Respondent.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
5. 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.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. 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).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Investigator Corlett found workmanship contracting violation issues existed at the time of the compliance inspection.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108, for failure to perform all work in a professional and workmanlike manner.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar revoke Respondent’s ROC License 327913 and require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar may revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
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, October 21, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Cliff Corlett
[email redacted]
Fripps and Associates Inc.
[email redacted]
Paul C Gamache
[email redacted]
By: OAH Staff