ALJDEC decisions subject to certification as final

06F-A0420-ROC-com · Registrar of Contractors · 2007-10-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25, 2007 APPEARANCES: Complainant: Jackson West and Nancy Seriani appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. 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 took place December 21, 2006 before Administrative Law Judge Marianne T. Bayardi. As a result of that hearing, Judge Bayardi issued a Decision and Order (“Recommended Order”) on January 4, 2007. By Order dated January 25, 2007, the Registrar of Contractors (“ROC”) adopted the Administrative Law Judge’s Recommended Order which was to become effective March 6, 2007 absent any request for rehearing. 2. On February 16, 2007, Tom Johnson (“Johnson”), on behalf of Respondent, filed a correspondence (“notice of compliance/denial of access”) with the Registrar wherein he related, inter alia, that Respondent had been “trying to work with the complainant about the problems with their garage but…cannot find a contractor to do the work because it is too small of a job.” Johnson further asserted that “[Respondent] tried numerous times by phone to contact the complainant to fix this problem and they just won’t let us on the property.” 3. On March 1, 2007, Complainants filed a correspondence with the ROC in response to Respondent’s notice of compliance wherein they asserted that they “have made NO Denials to Coast to Coast.” [Emphasis in original][1] 4. On June 19, 2007, the Registrar of Contractors issued its Order Denying Request for Case Closure and Setting Matter for Compliance Hearing wherein were referenced Complainants’ February 16, 2007 petition and Respondent’s March 1, 2007 response. Therein, the Registrar ordered that “Respondent’s Request to Close this matter due to Complainants’ denial of access be denied…[and] that this matter be set for a Compliance Hearing to determine whether or not Complainants have unreasonably denied access to Respondent to comply with the Registrar’s January 25, 2007 Order. If it is determined that Respondent has failed to comply with the terms of the January 25th Order, absent unreasonable interference on the part of Complainants, then Respondent’s Class C-03 License shall be subject to the imposition of an immediate suspension in accordance with the Registrar’s January 25, 2007 Order, upon the Registrar’s issuance of its Compliance Hearing Order. If it is determined that Complainants’ unreasonably denied access to Respondent or its agents, then Respondent’s Class C-03 License shall not be suspended, and the Registrar shall implement the 120 days period of probation upon the Registrar’s issuance of its Compliance Hearing Order.” 5. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Compliance Hearing dated August 23, 2007 “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on January 25, 2007, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 6. At the hearing, Complainant Nancy Seriani (“Seriani”) testified but submitted no exhibits. Complainant Jackson West appeared but did not testify. 7. Although the start of the scheduled hearing was delayed over fifteen (15) minutes to afford time in which to make an appearance, Respondent failed to appear either by authorized representative or counsel. 8. Seriani testified that, since its issuance on January 4, 2007, Respondent has made no attempt to contact Complainants in any fashion nor undertaken any corrective work to comply with the instant Recommended Order or Registrar’s January 25, 2007 Order. Seriani further testified that Complainants never denied Respondent access to the subject property and have always been ready, willing and able to allow Respondent perform the necessary corrective work on their property in order to comply with the Recommended Order. 9. Seriani further stated that Respondent’s absence at the instant hearing is indicative of its continued inaction on the subject project.

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 this hearing was scheduled due to its notice of compliance/denial of access, Respondent has the burden of proving that it complied with the subject Recommended Order issued January 4, 2007 and Registrar’s Order dated January 24, 2007. Contemporaneously, given that they have asserted that they never denied access to Respondent, Complainants have the burden of proof in this regard as set forth in the Registrar’s Order Denying Request for Case Closure and Setting Matter for Compliance Hearing. To prevail, each party must establish their burden by a preponderance of the evidence. A.A.C. R2-19-119. 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.” 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 grater 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 Respondent’s failure to appear at the hearing and the concomitant lack evidence in support of its assertion to such effect, it is determined and concluded that Respondent failed establish in any manner that Complainants unreasonably denied it access to perform the corrective work required by the subject January 4, 2007 Recommended Order and January 25, 2007 Registrar’s Order. 4. Based on the evidence elicited at the hearing, it is further determined and concluded Complainants established by the weight of credible, probative and relevant evidence that Respondent failed to comply with the terms of the subject January 4, 2007 Recommended Order and January 25, 2007 Registrar’s Order. 5. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith during and subsequent to the construction of the project as well as in response to the subject January 4, 2007 Recommended Order and January 25, 2007 Registrar’s Order. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the compliance hearing in this matter without legal or reasonable excuse. 6. It is further determined and concluded that, in view of Respondent’s failure to comply with the subject Recommended Order and Registrar’s Order, Respondent violated A.R.S. §32-1154A (3) (A.A.C. R4-9- 108, the workmanship rule), (23) and (7) as set for in the referenced orders and such violations warrant the imposition of disciplinary penalties against Respondent’s license. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Compliance Hearing Order entered in this matter, Respondent’s Class C-03 License, No. 201748 be immediately suspended in accordance with the Registrar’s January 25, 2007 Order. IT IS FURTHER RECOMMENDED that, in addition to the foregoing license suspension, Respondent’s Class C-03 License be placed on disciplinary probation for a period of one hundred twenty (120) days in accordance with the Registrar’s January 25, 2007 Order. IT IS FURTHER RECOMMENDED that, in addition to the above-provided penalties, Respondent pay the sum of $350.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D) in accordance with the Registrar’s January 25, 2007 Order. IT IS FURTHER RECOMMENDED that, in the event Respondent fails to pay the entire amount of the above-referenced civil penalty on or before 30 days following the effective date of the Order entered in this matter, Respondent’s Class C-03 contractor’s License No. 201748 be automatically revoked and that no future license be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding civil penalty is tendered in accordance with the Registrar’s January 25, 2007 Order.[2] Done this day, October 3, 2007.

________________________ Brian E. Smith Administrative Law Judge Original transmitted by mail this ____ day of ____________, 2007, to:

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

By ________________________ ----------------------- [1] Complainants filed a petition for rehearing on February 14, 2007. On March 7, 2007, Administrative Law Judge Tully issued a Recommendation to Deny Complainants’ Petition for Rehearing. On April 5, 2007, the Registrar issued an Order Denying Petition for Rehearing which provided that “the previously entered Order will be in full force and effect on May 15, 2007, unless a Stay Order is secured from Superior Court on or before said date. [2] 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