ALJDEC decisions subject to certification as final

05F-1519-ROC-com2 · Registrar of Contractors · 2006-11-30

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2006 APPEARANCES: Complainant: Paul Helmreich appeared, pro per. Respondent: John Womble, owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Bob Davies appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The record indicates that the original hearing in this matter took place June 29, 2005 in Docket No. 05F-1519-ROC before Administrative Law Judge Morton. As a result of that hearing, Administrative Law Judge Morton issued a Decision and Order on July 19, 2005. By Order dated August 18, 2005, the Registrar adopted the Administrative Law Judge’s Recommended Order which was to become effective September 27, 2005 absent any request for rehearing. 2. On September 22, 2005, Respondent filed a petition for rehearing or for reconsideration in Docket No. 05F-1519-ROC. Complainant filed a response objecting to such petition on October 10, 2005. 3. On October 14, 2005, Administrative Law Judge Morton issued an Order Recommending Denying Rehearing. The Registrar of Contractors adopted the referenced Order on November 15, 2005. 4. On or about January 19, 2006, Respondent filed an appeal of the Registrar of Contractors denial of his petition for rehearing. 5. On March 22, 2006, the Honorable Margaret H. Downie issued a Judgment of Dismissal With Prejudice against Respondent in Maricopa County Superior Court case number LC2005-000927-001 DT. 6. On April 28, 2006, the Registrar of Contractors revoked Respondent’s License No. 107372 for failure to pay a $150.00 Civil Penalty as required by the Registrar’s August 18, 2005 Order adopting Administrative Law Judge Morton’s Decision and Order. 7. On May 23, 2006, the Registrar of Contractors issued its Order Setting Compliance Hearing wherein it set aside the April 28, 2006 revocation of Respondent’s License No. 107372 due to Respondent’s having paid the $150.00 Civil Penalty on May 1, 2005. At that time, the Registrar sustained the suspension of said license for failure to comply with the terms of its August 18, 2005 Order. Contemporaneously, the Registrar directed that a compliance hearing be scheduled regarding Respondent’s April 6, 2006 written correspondence wherein he alleged that “Complainant refused to allow [him] to complete any corrective work unless Respondent agreed to perform additional corrective work not set forth in the Registrar’s March 4, 2005 Corrective Work Order.” 8. On July 25, 2006, a hearing was convened before Administrative Law Judge Barth in Docket Nos. 05F-1519-ROC-com and 06F-RF0300-ROC. At that time, the issues of Respondent’s compliance with the March 4, 2005 Corrective Work Order, Complainant’s alleged denial of access and Complainant’s Recovery Fund claim were to be addressed. Prior to the presentation of any testimony or evidence at the July 25, 2006 consolidated hearing, the parties concluded a settlement agreement (“settlement agreement”) and stipulated that all both matters be closed as settled and the hearing vacated. 9. Pursuant to the parties’ July 25, 2006 settlement agreement and Exhibit “A” attendant thereto, Respondent was to perform within thirty (30) days of the date thereof, or by August 24, 2006, certain corrective work pursuant to “the directives of the decision and order dated August 18, 2005.” Specifically, paragraphs 1, 2 and 3 provided that Respondent was to perform and/or cause to be performed certain corrective work relative to the project’s roof and the drainage thereon. In addition, paragraph 4 thereof provided that “Respondent agrees to properly correct any and all damage secondary to the leaking roof [i]ncluding but limited to carpet, padding, drywall, tape, texture, paint & insulation.” 10. As a result of the aforementioned settlement agreement, Administrative Law Judge Barth issued an Order Vacating Hearing on July 25, 2006. Thereafter, on August 4, 2006, the Registrar issued its Order of Closing whereby it adopted ALJ Barth’s Order Vacating Hearing and closed the case as settled. In addition, the Registrar further ordered that the suspension of Respondent’s Class C-42 License No. 107372 be lifted and placed on probation “pursuant t the Registrar’s August 18, 2005 Order.” 11. On August 14, 2006, Complainant filed a correspondence with the Registrar of Contractors wherein, inter alia, he took issue with the Registrar’s lifting of Respondent’s suspension and asked that the Registrar “reconsider [its] recommendation of lifting [Respondent’s] contracting license.” Complainant’s correspondence was based, inter alia, on Respondent’s alleged failure to comply with Administrative Law Judge Barth’s July 25, 2006 Order Vacating Hearing and attendant settlement agreement. 12. On August 18, 2006, Respondent filed with the Registrar of Contractors a correspondence wherein he asserts, inter alia, that he attempted that day to have a subcontractor, Saba’s Contracting (“Saba’s”) perform work at Complainant’s residence and was denied access. According to Respondent’s correspondence, Complainant denied access to Saba’s in accordance with information reportedly received from the Registrar of Contractors regarding Saba’s license status. Also on August 18, 2006, Complainant filed with the Registrar a correspondence wherein he alleged, inter alia, that Respondent’s subcontractor did not have a proper license to remove and hang new sheet rock as required. 13. As a result of the parties’ above-referenced correspondences, the Registrar of Contractors issued an Order Reopening Complaint and Setting Compliance Hearing on August 28, 2006. In accordance with this Order, issues to be addressed at the compliance hearing were “whether Respondent’s representative holds the proper license to perform the necessary corrective work and whether Complainant is, in fact, denying reasonable access to Respondent’s representative to perform the necessary corrective work.” 14. On October 3, 2006, the Registrar of Contractors issued its Notice of Compliance Hearing wherein it provided that a compliance hearing would be held “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on December 25, 2005[1], and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 15. This matter came for compliance hearing at the time, date and place set forth in the Registrar of Contractors’ October 3, 2006 Notice of Hearing. 16. At the hearing, Respondent John C. Womble (“Respondent”) testified and submitted Exhibit A which was marked, admitted and considered. 17. Complainant Paul Helmreich (“Complainant”) testified and submitted Exhibits 1 through 5 which were marked, admitted and considered. 18. Inspector Bob Davies (“Davies”) testified on behalf of the Registrar of Contractors and, inter alia, described his observations and conclusions regarding his November 8, 2006 pre-hearing jobsite inspection. 19. Respondent testified that on August 18, 2006, his subcontractor, Saba’s, appeared to do corrective work on the rear bedroom of the project. At that time, Saba’s was denied access because Complainant did not believe he was properly licensed to do such work which included, without limitation, removal and replacement of drywall and insulation as well as taping, texturing and painting of the drywall. When notified of this issue by Complainant, Respondent contacted Phil Coscia, ROC Assistant Chief of Administration, who advised that Saba’s was properly licensed to do such work.[2] Though Respondent knew the Saba’s ROC license numbers, he was unaware of which class licenses Saba’s holds. 20. Based on Mr. Coscia’s representations that Saba’s was properly licensed to perform the subject corrective work, Respondent maintains that he, through Saba’s, was unreasonably denied access to the project and, therefore, complied with the July 25, 2005 Decision and Order and July 18, 2006 settlement agreement. 21. Complainant testified that when Saba’s appeared at the project on August 18, 2006, he inquired as to its licensure and was informed that Saba’s was licensed for painting by “not for [d]rywall specifically.” (Exhibit 1) Complainant, referring to Exhibit 1, further stated that Saba never advised that he (Saba) intended to produce another properly licensed subcontractor to do the drywall and insulation work. However, Exhibit 1 thereafter states that “Mr. Saba had time in the conversation to interject that he had acquired a dually-licensed subcontractor that would install the insulation/sheetrock; he did not.” 22. Complainant further testified that when he advised Saba that he needed to have a properly licensed subcontractor to do the insulation and drywall work, Saba refused to perform any work, including painting, became agitated and left the premises. 23. Complainant believed that the scope of Saba’s work included demolition of any drywall or other debris, addressing any mold and/or structural issues and removal and replacement of insulation and drywall, tape, texture and paint. Complainant based his denial of access on Saba’s inability to perform any work other than painting and wallcovering. 24. Inspector Davies testified that its C-34 license did not allow Saba’s to perform the subject corrective work on the project as painting and wallcovering were minor or ancillary to the main work to be done. 25. Inspector Davies further stated that he had no personal knowledge of the conversation between Respondent and Phil Coscia but opined that had Coscia known the actual scope of the work to be performed by Saba’s he would not have advised Respondent that Saba’s had the proper license to do the subject remedial work. 26. Davies also testified that Saba’s license did not permit it to sub-out any remedial work beyond the scope of its own license although Respondent could for purposes of performing corrective work. 27. Davies further testified that at the pre-hearing jobsite inspection he determined that additional remedial work needs to be done including, without limitation, build up of foam roofing in the air conditioning area to correct excessive ponding, removal of excessive trash/building materials, correction of roof coating adhesion in certain minor areas and the air conditioner support structure and corollary damage in the rear bedroom, i.e., drywall, apparent mold, blocking, etc., which were in substantially the same condition as it was at the last inspection. Davies concluded that Respondent had “partially completed” some of the corrective work required by the aforementioned settlement agreement but that it is “clearly not done.” 28. Davies also water tested the entire roof due to Complainant’s representation that he experienced leaking at the carport and rear of the residence during the last rainstorm. Davies stated that he observed no leakage after conducting a 40 minute water test. 29. Complainant testified that leakage occurred in the carport area after Inspector Davies departed from the pre-hearing jobsite inspection and that Respondent has failed to complete other corrective work, e.g., in the rear bedroom, as required by the settlement agreement and underlying Decision and Order. (Exhibits 2 through 5) 30. Respondent acknowledged that additional corrective work needs to be completed but asserts that he was prohibited from performing such work by Complainant’s denial of access to his subcontractor, Saba’s. Respondent further asserts that he was unaware of any continued water leaks until the day of this compliance hearing.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. §32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. §32- 1154. 2. Since he requested this hearing and alleged compliance with the settlement agreement due to Complainant’s unreasonable denial of access, Respondent has the burden of proving that the subcontractor he retained was properly licensed to perform the subject corrective work as set forth in the Registrar of Contractors’ Order Reopening Complaint and Setting Compliance Hearing. Contemporaneously, given that he has alleged that Respondent has failed to comply with the subject settlement agreement, Complainant has the burden of proof in this regard as set forth in the Registrar’s Notice of Hearing. To prevail, each party must establish their burden by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994); Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Based on the evidence elicited at the hearing, it is determined and concluded that Respondent failed to establish by a preponderance of credible, probative and relevant evidence that Saba’s was properly licensed to perform the corrective work at the project for which it was retained. As a result, Complainant reasonably denied access to Saba’s and, therefore, Respondent to perform corrective work on the project. 4. It is further determined and concluded that Complainant established by the weight of credible, probative and relevant evidence that Respondent failed to comply with the terms of the July 25, 2006 settlement agreement and underlying Decision and Order including, without limitation, that pertaining to roof leakage and drainage, air conditioner mounting, roof coating adhesion, removal of debris/materials on the roof and any and all remaining destructive and/or remedial work required in the rear (master) bedroom (as set forth in Paragraph 4 of the settlement agreement).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this compliance proceeding, the suspension of the Class C-42 license of Respondent be re-imposed until or unless the Registrar of Contractors receives written proof that Respondent has caused, utilizing a properly licensed contractor selected and paid in advance by Respondent , the accomplishment of substantial compliance in correcting those remaining settlement agreement items as set forth in Conclusion of Law 4, hereinabove. IT IS FURTHER RECOMMENDED that if Respondent causes accomplishment of the above-described corrective action by a licensed contractor in the manner described above on or before the effective date of the Order issued in this matter, or is unreasonably denied access for such licensed contractor, then the aforementioned license suspension shall not take place. IT IS FURTHER RECOMMENDED that, in addition to the foregoing indefinite license suspension, if any, Respondent’s Class C-42 license No. 107372 be placed on probation for a period of six (6) months commencing on the effective date of this Order or the date on which notice of Respondent’s proper compliance with the terms of this Order is filed with this agency, whichever is later, as provided for in the Registrar of Contractors’ August 18, 2005 Order.[3] Done this day, November 30, 2006.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _____________________

----------------------- [1] The undersigned took administrative notice of the files in Docket Nos. 05F-1519-ROC, 05F-1519-ROC-com and 05F-1519-ROC-com2 and found no Decision and Order issued on December 25, 2005. [2] It should be noted that Respondent did not relate a detailed account of his conversation with Mr. Coscia regarding the nature of the work to be performed by Saba’s and what was or was not included within the scope of Saba’s licenses. [3] 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 in this matter will be forty (40) days from the date of that certification.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826