ALJDEC decisions subject to certification as final

05F-P0273-ROC-COM · Registrar of Contractors · 2006-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2006, at 9:00 a.m. APPEARANCES: The Complainants appeared through Richard Bronson. The Respondent appeared its attorney, F. Morgan Brown. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has substantially complied with the terms and conditions of the previously entered Decision and Order of the Registrar of Contractors. Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The prior Order of the Registrar of Contractors, which has become final in the absence of any timely appeal, provides for the suspension of the Respondent’s Class C-53 License. 2. The Order of the Registrar of Contractors provides, in pertinent part, as follows: “It is ordered suspending Respondent’s Class C-53 license commencing on the effective date of this Order (40 days after the mailing date shown below) until the Registrar receives proof that Respondent has appropriately rectified the issues involved and detailed in the Complaint, then Respondent’s license shall not be suspended, and this Citation and Complaint shall be closed.” 3. The Complaint provides, in pertinent part as follows: “g) TYPE OF WORK DONE: Extraction of pump, video taping of the inside of the well & evaluation report…STATE ITMEMIZED COMPLAINT BELOW. RETAIN ALL ORIGINAL DOCUMENTAION FOR YOUR FUTURE USE: See attached. Without prejudice.” 4. The Complainants then attached thirty two (32) pages to their Complaint. 5. On October 21, 2005, the Respondent filed a Motion for Rehearing. 6. On January 17, 2006, the Registrar of Contractors issued a letter to the Complainants which provides, in pertinent part, as follows: “The Governor’s Office has requested that we respond to your recent letter regarding you complaint now pending before the Registrar of Contractors. At present there has been a default order entered against the contractor in the case because the contractor did not file a timely answer with the agency to the formal citation and complaint. The default order requires that the contractor rectify the issues involved and detailed in the complaint. This means that the contractor must address and resolve the items set forth in your complaint. After a review of the file, I note that the contractor’s attorney has contacted you requesting that you advise what matters you wish to have addressed. I would recommend that you contact him and attempt to resolve these matters?” 7. On March 14, 2006, the Registrar of Contractors denied the Respondent’s Petition for Rehearing. 8. On or about May 24, 2006, the Respondent filed a motion with the Registrar of Contractors entitled: “Complainants have denied access to the property to comply with the order and request that license be reinstated.” The Respondent’s motion provides, in pertinent part, as follows: “2. After the denial, Copperstate Drilling and Supply has sent several letters to the complainants, Richard and Laurie Bronson, asking what it would take to be in compliance. The first letter was sent on March 31, 2006; with a time Mr. McCray could go on the property and correct the work. A reply was received on April 21, 2006, indicating that they could not meet on that date. On April 26, 2006, we again sent another letter asking them for any date within the next two weeks in which Respondent could return to their property, reinstall the pump, and complete the requirements so his license could be reinstated. 3. Copperstate Drilling has received no response to the April 26, 2006, letter. It is now May 18, 2006; Complainants have denied access to their property and are only causing harm to Respondent by refusing him access, so that he cannot reinstate his license.” 9. On May 25, 2006, the Complainants submitted a written response in opposition to the Respondent’s request to close this matter based upon denial of access. 10. On July 24, 2006, the Registrar of Contractors issued an Order setting this matter for the Compliance Hearing at issue. The Order provides, in part, as follows: “In view of the foregoing, and with good cause appearing, IT IS ORDERED that Case No. P05-0273 be set for a Compliance Hearing in the regular course of docketing in the Prescott area. The Compliance hearing shall be limited to a determination as to whether or not Complainants have denied access to Respondent so as to allow it to comply with Registrar’s September 19th Order.” 11. Credible testimony and evidence, presented at hearing, established the Respondent did not fully understand what the Complainants expected it to perform in order to satisfy the terms and conditions of the Default Order in this matter. 12. During the Compliance Hearing the Complainants stated that the following specific items which need to be corrected in order to comply with their Complaint: (1) The Complainant want their solar pump reinstalled and written proof that their original warranty is in place for their entire solar pump system, either through the manufacturer or through the Respondent. (2) The Complainants want the Respondent to furnish the name(s) of any individuals who will perform corrective work on their property. (3) The Complainants want at least seventy two (72) hours of the time and date the Respondent selects to perform the corrective work and that the Respondent arrive within two (2) hours of the selected time. (4) The Complainants want the Respondent to furnish them with a written evaluation of their well. (5) The Complainants want written proof that the Respondent has contacted the telephone company and taken measures to ensure that the proper license number is utilized in any future yellow page advertising. (6) The Complainants want a copy of the video tape that was taken of their well. (7) The Complainants want copies of all invoices submitted by the Respondent to their past attorney of record. (8) The Complainants want the Respondent to return or replace a spool of wiring that was removed from their property. (9) The Complainants want the return of their solar pump. (10) The Complainants want the return or replacement of any and all piping removed from their property. (11) The Complainants want the return or replacement of their water sensor. (12) The Complainants want the return or replacement of silver colored metal bar that was removed from their property. 13. Credible testimony and evidence, presented at hearing, established the Respondent has not complied with the terms and conditions of the Default Order at least in part due to a lack of understanding as to what needed to be done in order to comply with the terms and conditions of the Default Order. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. However, the terms and conditions of their Complaint have now been fully clarified by the Complainants and the Respondent should be given one final chance to comply with terms and conditions of the Default Order issued in this matter. 14. Both parties demonstrated an ongoing inability to effectively communicate or to schedule their onsite work and both repeatedly have attempted to resort to the use of Agency personal to act as intermediaries between them. This is not an appropriate Agency function. The parties are fully capable of communicating with each other and scheduling the corrective action that must be performed in order to comply with the terms and conditions of the Default Order issued in this matter.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter under the authority of A.R.S. §32-1101, et seq., a section that authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. §32-1154. 2. At a “Compliance Hearing,” the overall burden of persuasion generally remains with the moving party. Ariz. Admin. Code R2-19-119(B). 3. Credible testimony and evidence presented during the Compliance Hearing supported findings that the Respondent has yet not substantially complied with the terms and conditions of the prior Order of the Registrar of Contractors.

RECOMMENDation on compliance hearing In view of the foregoing, it is recommended the Respondent’s Class C- license be suspended on the effective date of the Registrar’s Order on Compliance Hearing. It is further recommended, if the Registrar receives “written” proof on or before the effective date of the Registrar’s Order on Compliance Hearing that the Respondent has substantially complied with the terms and conditions of the Default Order or the Respondent has been denied reasonable access to perform the corrective actions required by the Default Order, the above provide license suspension shall not take place and this matter be closed. Done this day, December 5, 2006.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488