ALJDEC decisions subject to certification as final

06F-A0274-ROC-com · Registrar of Contractors · 2007-01-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2007 APPEARANCES: Complainant : Sam Bradford appeared pro se. Respondent : No representative appeared for Tri City Renovations and Repair, L.L.C. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ A Hearing[1] was convened to determine whether Respondent Tri City Renovations and Repair, L.L.C. violated state law, as alleged by Complainants Bradford, by failing to comply with an Order previously issued by the Arizona Registrar of Contractors. Evidence and testimony were presented at the Hearing. Based upon evidence that was received into the record,[2] the following DECISION AND RECOMMENDED ORDER is issued. FINDINGS OF FACT 1. Complainants Sam and Judy Bradford entered into an agreement with Tri City Renovations and Repair, L.L.C. for the remodeling of aspects of their kitchen. 2. After the contract had been entered, the Bradfords became disconcerted over the quality of Tri City Renovations and Repair, L.L.C.’s performance. Consequently, the Bradfords filed a Complaint (No. A06-0274) before the Registrar of Contractors. 3. At the time that the contract that is at issue was formed, Tri City Renovations and Repair, L.L.C. held Arizona Registrar of Contractors License No. 204090, Class C-61 (Residential Limited Remodeling and Repair Contractor).[3] 4. On June 8, 2006, a Hearing convened on Complaint No. A06-0274 before Administrative Law Judge Marianne Bayardi. At the Hearing, the parties determined to settle their dispute. Having reduced the parties’ manifestation of resolution to a writing signed by the parties, the Administrative Law Judge issued a DECISION AND RECOMMEMDED ORDER on June 8, 2006 recommending that Complaint No. A06-0274 be closed. 5. By Order issued on June 28, 2006, the Registrar of Contractors approved the settlement and adopted the Administrative Law Judge’s recommendation of June 8, 2006; Complaint No. A06-0274 was closed. 6. On or about July 19, 2006, the Bradfords moved to have Complaint A06-0274 reopened because Respondent Tri City Renovations and Repair, L.L.C. had not paid the sum of $2,500.00 as promised. 7. Thereafter, on December 5, 2006, the ROC issued a NOTICE OF COMPLIANCE HEARING to the parties and the Hearing convened as scheduled. 8. Tri City Renovations and Repair, L.L.C. failed to send a representative to the COMPLIANCE HEARING. 9. The “Settlement Agreement” entered into by the Bradfords and Tri City Renovations and Repair, L.L.C. required Tri City Renovations and Repair, L.L.C. to pay $1,924.64 by June 9, 2006 and $2,500.00 within thirty (30) days thereafter. While Tri City Renovations and Repair, L.L.C. made the first payment (albeit seven (7) days late), it has not made any attempt to make the required $2,500.00 payment. 10. The evidence is uncontested that Tri City Renovations and Repair, L.L.C. has failed a term of the June 8, 2006 Settlement Agreement between it and the Bradfords. 11. The evidence further is uncontested that Tri City Renovations and Repair, L.L.C. has failed to comply with the Registrar’s June 28, 2006 ORDER CLOSING Complaint No. A06-0274 12. An examination of ROC license records reveals that Lic. No. 204090 is presently suspended pending compliance in Complaint No. A06- 0237.[4]

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over Complaint No. A06-0274 under the authority of A.R.S. § 32-1101, et seq., a section that authorizes the Registrar to impose disciplinary sanctions against licensees for violations of A.R.S. § 32-1154. Tri City Renovations and Repair, L.L.C. is a licensee. 2. At a “Compliance Hearing,” the overall burden of persuasion generally remains with the moving party.[5] 3. Further, the standard of proof is that of the “preponderance of the evidence.”[6] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[7] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Bradfords, is more probably correct on the issue(s) in dispute, despite and in the face of the asserted defense(s). 4. In this case, the Bradfords retain the burden of demonstrating noncompliance. To warrant the imposition of sanctions by the Registrar, against a non-compliant Contractor, the Bradfords must only persuade by a preponderance of the evidence that Tri City Renovations and Repair, L.L.C. has failed its obligations under the previously-entered settlement agreement. The Bradfords have met that burden. 5. Tri City Renovations and Repair, L.L.C.’s failure to attend the Hearing to answer to the allegation of noncompliance ought to be considered an aggravating factor in the assessment.

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the Registrar revoke[8] Tri City Renovations and Repair, L.L.C.’s Lic. No. 204090. In the event of the certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall fall forty days from the date of that certification.

Done this 9th day of January 2007.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 9th day of January 2007 to:

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

By ___________________________

----------------------- [1] The Hearing was conducted via videoconferencing technology with the Administrative Law Judge situated at the Office of Administrative Hearings in Phoenix and Mr. Bradford at the offices of the Registrar of Contractors in Prescott.

[2] The record consists of the testimony and documentary evidence received at the June 8, 2006 Hearing, the testimony and documents received at the January 9, 2007 COMPLIANCE HEARING, the documents contained within the Agency’s case file, the contents of which the Administrative Law Judge has accorded administrative notice, and the digital recording of the Hearing under the authority of A.A.C. R2-19-121.

[3] See http://www.azroc.gov/clsc/AZROCLicenseQuery

[4] See http://www.azroc.gov/clsc/AZROCLicenseQuery

[5] See Ariz. Admin. Code R2-19-119(B).

[6] See Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (A).

[7] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also J. LIVERMORE, R. BARTELS, & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[8] For authority to suspend an already suspended or expired license, see A.R.S. § 32-1154(C).

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