ALJDEC - Licensing

2024A-13160-CHC-ROC · Registrar of Contractors · 2025-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Clayton Kimbell,

COMPLAINANT

v.

Fenwick Construction Services Inc.,

License No. ROC 298078,

RESPONDENT

No. 2024A-13160-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 3, 2025

APPEARANCES: Complainant Clayton and Linda Kimbell appeared on their own behalf. Registrar of Contractors Investigator Todd Anderson appeared telephonically.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Fenwick Construction Services Inc. (Respondent) is the holder of License No. 298078 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 7, 2024, Complainant hired Respondent to perform repair work to his fencing at his home in Phoenix, Arizona.

On or about December 1, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Todd Anderson. The jobsite inspection was performed on December 27, 2024.

Investigator Anderson then issued a Written Directive on or about January 7, 2025, which provided in pertinent part as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. §32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 23rd, 2025.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item: 1 - Back rolling gate work not started

Investigator’s Observation: At the time of the Jobsite Inspection conducted on January 7th, 2025, the installation of the new rolling gate located at the rear of the residence had not yet been started or completed.

Contractor shall install the rolling gate as per contract and in accordance with any applicable building codes and professional building standards.

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.

Complaint Item: 2 - back brick wall replacement not started

Investigator’s Observation: At the time of the Jobsite Inspection conducted on January 7th, 2025, the installation of the back brick boundary wall located at the rear of the residence had not yet been started or completed. Contractor shall install the back brick wall as per contract and in accordance with any applicable building codes and professional building standards.

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.

Complaint Item: 3 - no temporary fencing to secure yard

Investigator’s Observation: At the time of the Jobsite Inspection conducted on January 7th, 2025, the installation of the temporary fencing to be located at the rear of the residence had not yet been started or completed. Contractor shall install the temporary fencing as per contract and in accordance with any applicable building codes and professional building standards.

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....

On January 30, 2025, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); and A.R.S. § 32-1154(A)(22).

On or about February 13, 2025, Respondent submitted an Answer to the Registrar.

On or about March 4, 2025, a Notice of Hearing was issued setting a hearing on April 3, 2025, at the Office of Administrative Hearings, an independent state agency. A copy of the Notice of Hearing was mailed and e-mailed to Respondent’s addresses of record. The tribunal also issued an Order containing the Google Meet information via e-mail to the parties on March 6, 2025.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Investigator Anderson testified as to the Registrar’s involvement and the above timeline and findings.

Investigator Anderson testified that Respondent failed to appear at the jobsite inspection.

Finally, Investigator Anderson testified that on January 24, 2025, he sent an email to Mrs. Kimbell who informed him that Respondent never contacted her about scheduling the corrective work.

Complainant’s testimony echoed Investigator Andersons as to the status of the project. Mrs. Kimbell also testified that she did not hear from Respondent once the Directive was issued.

Administrative notice was taken of Respondent’s prior License record on April 21, 2025. Such prior License record reflected that Respondent’s License No. 298078 was first issued on April 30, 2015, and reflected that there was one open case, namely the present case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. 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).

The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(1), as Complainant paid for the work, and Respondent did not complete the same.

The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B), as Respondent did not use such skills, prudence and diligence in performing the work.

Finally, the preponderance of the evidence established Respondent failed to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 298078 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 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 A.R.S. § 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, April 21, 2025.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Clayton Kimbell

[email redacted]

Fenwick Construction Services Inc.

PO Box 5158

Glendale, AZ 85312

[email redacted]

By: OAH Staff