ALJDEC decisions subject to certification as final

05F-H0235-ROC-com · Registrar of Contractors · 2007-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 11 January 2007 APPEARANCES: Complainant: None. Respondant: Greg Schafer, President and Owner, GES Development; Bill Maguire, witness for Respondent (appearances via video link from Kingman, AZ). Others: William Redman, Inspector, Arizona Registrar of Contractors (appearances via video link from Kingman, AZ). ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ The Registrar of Contractors (“ROC”) ordered a Compliance Hearing held regarding the above-captioned case. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby issues the following Findings of Fact, Conclusions of Law, and Recommended Decision to the ROC.

FINDINGS OF FACT 1. The above-entitled case was called to hearing on 11 January 2007 at 8:15 AM at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice Of Compliance Hearing issued to the parties by the ROC on 5 December 2006, “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on 1 December 2005 and reconsideration the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing”. 2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing. 3. A settlement agreement between the parties was reached during the original hearing in this matter, which the ROC incorporated into its Order of Closing dated 1 December 2005. The settlement provides, in pertinent part, as follows:

a. Respondent will properly repair the wall and window area at the location where the roof leaked at master bedroom number 2. The foregoing remediation includes mold removal at this location. b. Respondent will properly repair stucco cracks on the south wall outside master bedroom number 2. c. Respondent will properly repair the hole in the ceiling of the great room that was damaged by the roof leak caused by the air conditioning unit, including the repair of the seams in the adjacent drywall on the ceiling. d. Respondent will repair the crack in the driveway concrete by appropriate means. e. Respondent will determine the cause of the front door leak and will repair same by appropriate methods. Respondent will confer with the door manufacturer to determine if the front door needs to be replaced. If it is determined that the front door needs to be replaced, then Respondent agrees to replace the front door with a comparable door that is mutually agreed upon by both parties. If replacement is required, then Respondent is to complete same no later than February 1, 2006.

4. Uncontroverted evidence of record established that Respondent has properly accomplished items “a” through “c” above. Items “d” and “e” have not been accomplished as Respondent has been denied access to Complainant’s property. Item “d” involves a crack in the driveway concrete that is 1/16th inch wide and 12” long, the industry standard for remediation of which is grinding and filling the crack, which Respondent is prepared to accomplish, but Complainant won’t accept. Respondent has offered other solutions, up to and including cutting out the damaged section of concrete and re-laying it; however Complainant has refused all such offers of remediation. Item “e” involves remediation of a leak in the front door, either by repair or replacement. Respondent has agreed to repair the door, which ROC inspection confirms can be done, (cost $200.00) or replace it with a comparable door (cost $1200.00), but Complainant refuses either solution and insists on a $3200.00 door to replace the old one. The $3200.00 door is not a comparable as contemplated by the settlement. Despite repeated inquiries by Respondent, Complainant will not communicate with Respondent in order to reach a solution regarding items “d” and “e”. 5. The ROC inspector has been unable to gain access to the property to make a pre-hearing inspection. 6. Complainant failed to appear and, consequently, no evidence was presented in support of Complainant’s case. Complainant telephoned the ROC office in Kingman after the commencement of the hearing to inform all that he would not be attending the hearing due to his being at work at his place of employment. It is noted that Complainant had been aware of the time and place of the hearing for over a month.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant, by his default at hearing, has failed to sustain his burden of proving, by a preponderance of reliable, substantial and probative evidence that Respondent has failed to comply with the terms and conditions of the previously issued Orders of the ROC in this matter. In fact, the evidence was uncontroverted at hearing that Respondent has either met all the terms and conditions of the settlement between the parties, or has been prevented from doing so, without good cause, by the Complainant.

RECOMMENDED DECISION

It is recommended that no action be taken against Respondent’s Class B license and that this matter be dismissed with prejudice. 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. Done this day, January 29, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

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

By ___________________________

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