ALJDEC decisions subject to certification as final

06F-H0184-ROC-com · Registrar of Contractors · 2007-03-06

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2007 APPEARANCES: Complainant: Complainant appeared, pro per. Respondent: Respondent failed to appear either personally or through any authorized representative or counsel. Registrar of Contractors: Inspector William Redman 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 May 3, 2006 in Docket No. 06F-H0184-ROC before Administrative Law Judge Vanella. Prior to the presentation of any testimony or evidence, the parties concluded a settlement agreement and stipulated that the complaint be closed as settled and the hearing vacated. The essential terms of that settlement agreement were read into the record and set forth in Administrative Law Judge Vanella’s Order Vacating Hearing Based Upon Settlement dated May 3, 2006. 2. By the terms of the settlement agreement, the parties agreed as follows: a. Respondent will have the general contractor, Jay Crone (who was present at the hearing and consented to perform all of the necessary work), contact Mohave Electric to inspect the power pole to determine whether a new pole is required or whether a “box” will suffice for providing sufficient power; b. Respondent will have the general contractor provide the necessary dirt and compact the dirt at the site; c. Respondent will have the general contractor pay for and install ground cover for the site; depending upon the type of ground cover the parties mutually agree upon, should irrigation be necessary, the general contractor will provide such irrigation; d. All work will be performed by June 1, 2006. 3. Based on the parties’ settlement agreement, Administrative Law Judge Vanella vacated the May 3, 2006 hearing and remanded the matter to the Registrar of Contractors for appropriate disposition. By Order of Closing dated June 6, 2006, the Registrar approved the settlement agreement between the parties and ordered Case No. H06-0184 closed as settled. 4. The Registrar of Contractors’ file in this matter revealed that on June 9, 2006, Complainant filed a correspondence with the ROC wherein she advised that Respondent had failed to comply with any portion of the parties’ settlement agreement. 5. Based on Complainant’s above-referenced June 9, 2006 correspondence and Respondent’s alleged breach of the parties’ settlement agreement, the Registrar issued its Order Reopening Complaint and Setting Compliance Hearing dated September 21, 2006. 6. This matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Compliance Hearing dated January 26, 2007 (“Notice”). 7. Pursuant to the Registrar of Contractors’ Notice, this Compliance Hearing was being conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on June 6, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing. 8. At the Compliance Hearing, Registrar of Contractors’ Inspector William Redman (“Redman”) testified that he conducted a pre-hearing jobsite inspection on February 23, 2007 at which time he determined that nothing required by paragraph 2 (a) through (d) of the parties’ settlement agreement had been performed. 9. Complainant testified and submitted Exhibits 1 through 21 which were marked, admitted and considered. 10. Respondent failed to appear either personally or through any authorized representative or counsel. 11. A review of the licensing database maintained by the Registrar of Contractors (“ROC”) revealed that Stanley James Terasinski is the owner and qualifying party for Respondent’s Class C-31 (Residential Masonry) license, No. 093888. It was also revealed that said license was suspended June 1 -16, 2004 (non-renewal); May 22 through August 15, 2005 (lack of bond); and, June 1, 2006 (non-renewal). 12. Complainant testified that sometime after the parties’ executed their settlement agreement, Respondent and/or the general contractor, Jay Crone (“Crone”), placed and/or caused to be place a minimal amount of dirt around the power pole that services her residence which was part of Respondent’s obligations under the subject settlement agreement. Complainant further testified that, notwithstanding the presence of such dirt, the power pole is still “leaning and crooked” and has been “compromised” by Respondent’s initial actions and, thereafter, inaction. 13. Complainant further testified that Respondent has failed to comply and/or cause compliance with all of paragraph 2 of the settlement agreement.

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 they alleged non-compliance with the Registrar’s Order, Complainant has the burden of proof and must establish statutory violations 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 findings and testimony of Inspector Redman and the testimony and evidence presented by Complainant, it is determined and concluded that Complainant established by the weight of competent, reliable and credible evidence that Respondent did not perform and/or cause to be performed its obligations under the terms of the parties’ settlement agreement entered into May 3, 2006 as set forth in Findings of Fact Nos. 8, and 13 hereof. 4. In view of Respondent’s failure to accomplish substantial compliance with the May 3, 2006 settlement agreement and Registrar of Contractors’ June 6, 2006 Order of Closing, it is determined that proven breaches by Respondent of the parties’ settlement agreement suggest a determination that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9- 108, the workmanship rule, and (7) and such violations warrant the imposition of disciplinary penalties against Respondent’s license at this time in this matter. 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 in question as well as in response to the settlement agreement it entered into with Complainant. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse. … … RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that Respondent’s Class C- license, No. 093888, be revoked on the effective date of the Order entered in this matter (40 days after service of the Order).[1] Done this day, March 6, 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] 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.

-----------------------

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