ALJDEC decisions subject to certification as final

06F-H0221-ROC-com · Registrar of Contractors · 2007-07-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2007 APPEARANCES: Complainant: Barbara A. and Don R. Kolar appeared, pro per. Respondent: Michael Joseph Avitabile, owner and qualifying party, appeared and was represented by counsel, Mark. A. Sippel. 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 took place October 3, 2006 before the undersigned. Prior to the presentation of any testimony or evidence, the parties concluded a settlement agreement and stipulated that the complaint be closed. The essential terms of that settlement agreement were read into the record and set forth in the undersigned Administrative Law Judge’s Decision and Order Vacating Hearing Based on Settlement Agreement dated October 23, 2006. 2. Based on the parties’ settlement agreement, the undersigned vacated the October 3, 2006 hearing and remanded the matter to the Registrar of Contractors for further appropriate action. 3. By Order of Closing dated November 9, 2006 (“Order”), the Registrar of Contractors (“ROC”) adopted the Administrative Law Judge’s Recommended Order and closed the matter as settled. The Order further provided that the “Citation and Complaint is subject to being reopened by the parties upon an allegation of failure to comply with the terms of the settlement.” 4. By the terms of the settlement agreement, the parties agreed, in pertinent part, as follows: “a. The parties have resolved all items enumerated in Complainant’s November 14, 2005 complaint and attendant correspondence of like date filed with the Registrar of Contractors and specifically addressed certain of those items as follows: i. Porch Light (complaint item 5) and ii. Rear Concrete Block Wall (complaint item 10): Complainants shall waive any claim against Respondent pertaining to these stated items in exchange for the payment by Respondent of the sum of Five Hundred Dollars and Respondent’s waiver of any objection to Complainants’ adding additional block (to the maximum code height of six (6) feet) to the rear concrete block wall which serves as a common wall between Complainants’ property and that owned by Respondent immediately to the rear of the subject property. Respondent remitted five hundred dollars cash to Complainant Don Kolar (D. Kolar”) at the hearing. iii. Gale Insulation (complaint item 11): Respondent will contact Gale Insulation and, together with Complainant D. Kolar, Respondent will personally inspect and insure that there is sufficient insulation where there appears to presently be a lack of depth of the blown insulation. In the event D. Kolar and Respondent determine that there is insufficient blown insulation, Respondent will cause Gale Insulation to remedy such condition to the satisfaction of D. Kolar and Respondent or Respondent shall take affirmative action with the Registrar of Contractors vis a vis Gale Insulation. iv. Carpet Stain (new item, not part of complaint): Master Bedroom: Respondent shall remove and/or cause to be removed the carpet stain in the master bedroom. v. Drywall Piece in Garage (new issue – not part of complaint): Respondent shall repair and/or cause to be repaired the damaged drywall piece in the subject garage. Further, Respondent shall inspect and determine whether a water leak exists in the area of said drywall damage and, in the event such water leak exists, irrespective of its cause, Respondent shall repair and/or cause to be repaired said water leak prior to completing the drywall repair. b. Concrete Driveway: the parties agree and stipulate that the concrete driveway issue has not been resolved and it is further agreed between the parties that the terms of this settlement agreement in no manner are to be interpreted as constituting a waiver by Complainants of their right to pursue legal redress for such item or any other item pertaining to the subject project which falls within the statutory two year stature of limitations. c. All work to be performed and/or caused to be performed by Respondent pursuant to the terms hereof shall be completed in accordance with all Registrar of Contractors standards and/or applicable codes on or before October 20, 2006. d. The parties shall give each other at least twenty-four (24) hours written notice of the scheduling of the work to be performed by Respondent hereunder and/or any problems regarding compliance with their respective obligations under this settlement agreement. 4. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile, email and/or mail.” 5. On November 20, 2006, Complainants filed a letter with the Registrar of Contractors wherein they advised, inter alia, that Respondent “did the following at our house following the purported hearing to meet the requirements set forth by the judge: 1. Fixed the air conditioner unit and the garage ceiling from October 4, 2006 through October 23, 2006. 2. Mike checked the insullation [sic] on October 27, 2006. The insullation [sic] was blown in on November 13, 2006. 3. The soiled carpet in the master bedroom is still there. We moved the double dresser and the hutch mirror on September 28, 2006 for the inspection before the Administrative Hearing on October 3, 2006. The dresser and mirror are still sitting in the middle of our bedroom floor. [Respondent] did not keep his promise to the judge to repair, replace or clean the items he was told to do. There is no excuse for the insullation [sic] and the carpet to have been delayed that long. As of today’s date, the carpet still needs to be cleaned or replaced.” 6. On January 8, 2007, the ROC issued its notice of Complainants’ claim of a breach of settlement agreement. On that date, Complainants also filed a request for compliance hearing with the Registrar wherein they asserted that the subject master bedroom carpet was “still soiled and has not been cleaned as ordered.” 7. On April 27, 2007, the Registrar issued its Order Reopening Complaint and Setting Compliance Hearing. 8. The ROC issued a Notice of Compliance Hearing (“Notice”) on May 24, 2007 and the hearing convened at the time, date and place set forth therein. 9. Pursuant to the Registrar’s 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 November 9, 2007 [sic], and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 10. Prior to the presentation of evidence at the compliance hearing, the parties stipulated that the only remaining issue in dispute was the carpet stain in the master bedroom. However, notwithstanding this stipulation, Complainants wanted to note for the record that Respondent failed to remedy the other settlement agreement items, i.e., iii and v, in a timely fashion, or by October 20, 2006 as required. 11. At the compliance hearing, Complainant Don Kolar (“D. Kolar”) testified and submitted Exhibits C-1, C-4, C-8, C-9, C-10, C-11, C-14 and C- which were marked, admitted and considered.[1] Exhibit C-2 was admitted over objection. 12. Michael Avitabile (“Avitabile”), owner and qualifying party[2], testified on behalf of Respondent and submitted Exhibits R-26, R-33, R-34A and R-34B which were marked admitted and considered. Katie Rosa (“Rosa”), office manager, and Ron Collins (“Collins”), of Certified Carpet & Upholstery Cleaning (“Certified”), also testified on behalf of Respondent. 13. Inspector William Redman (“Redman”) was initially called to testify by Complainants but was asked no questions by either party and excused. 14. Based on the evidence elicited at the hearing and the documents contained in the file provided the Office of Administrative Hearings by the Registrar of Contractors of which this tribunal took Administrative notice, the following salient facts are important to note: a. Remedial work on the carpet did not take place until January 2007 when Certified attempted to remove the subject stain pursuant to Respondent’s directive. (Exhibit R-26) b. Despite its efforts, Certified was able to remove only approximately fifty percent (50%) of the stain. c. A factual dispute exists between the parties relative to efforts made and/or allegedly made by Respondent to address the carpet stain in October 2006. Complainant D. Kolar testified that Respondent made no effort nor caused any effort to be made to remedy the stain prior to mid- January 2007, well beyond the October 20, 2006 settlement agreement deadline. Avitabile testified that Respondent contacted Brown’s Carpet Care (“Brown’s”) immediately after the October 2006 hearing to attend to the carpet stain in October 2006 and never heard back from them. Given such lack of further communication from Brown’s, Avitabile believed the carpet stain issue had been resolved at that time. Rosa confirmed that she contacted Brown’s to schedule the carpet cleaning and instructed that company to contact Complainants for such purpose. Rosa further testified that she left telephone messages with Complainants regarding Brown’s carpet cleaning which calls were never returned. d. With one exception, the parties did not provide each other with the twenty-four (24) hour written notice regarding the scheduling of work or any problems regarding compliance with the settlement agreement other problems. e. Avitabile testified that Respondent experienced no actual resistance or refusal of access to Complainants’ premises until May 2007. f. Redman testified that, though it did not appear that the carpet stain had been remedied by the October 20, 2006 settlement agreement deadline, he believed Respondent had accomplished substantial compliance regarding that issue. g. In May 2007, Respondent offered to replace the carpet for Complainants to resolve the stain issue. D. Kolar testified that he refused such offer on the advice of an unidentified ROC representative who stated that by accepting the replacement carpet Complainants would lose their right to a compliance hearing. At the compliance hearing Respondent reiterated its offer to replace the carpet given the remaining stain and related that it had the referenced carpet in their warehouse.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. Sec. 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. Sec. 32-1154. 2. Since they alleged non-compliance with the Registrar’s Order, Complainants have the burden of proof and must establish statutory violations 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, 187 431, 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 evidence elicited at the hearing, it is determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent failed to achieve total compliance with the parties’ settlement agreement, although not from a lack of effort on Respondent’s part. By the express terms thereof, the parties were obligated to act in good faith towards completion of the settlement agreement. It is eminently clear from the record herein that both parties failed to adhere to the agreement’s express requirement to provide the other party with a minimum twenty-four (24) hour written notice of any action to be taken in accordance therewith. As was addressed by the Administrative Law Judge at the time of the original hearing, such provision was included in the settlement agreement due to the pre-existing animosity between the parties and to minimize, if not eliminate, the very problems which have precipitated the necessity for a compliance hearing regarding remedial measures to be taken thereunder by Respondent. Similarly, the uncontroverted evidence adduced at the hearing established that Respondent did not complete the remedial work on the three settlement agreement items, i.e., insulation, drywall/water leak and carpet stain, by the October 20, 2006 deadline. However, the insulation and drywall/water leak were addressed by mid-November 2006 and accepted by Complainants. The good faith factual dispute between the parties regarding alleged attempts by Respondent to schedule treatment of the carpet stain in October 2006 and Complainants’ assertion that no such attempts were made prevents this tribunal from conclusively determining whether such efforts were made and/or whether Complainants denied access to accomplish same. However, in that it was Respondent’s obligation to complete the referenced remedial work, it was incumbent thereon to verify that the carpet cleaning was completed. Failure to do so is a factor in aggravation herein which placed Respondent’s license in peril. Notwithstanding such factual dispute, this tribunal determines and concludes that, given Respondent’s completion, albeit untimely, of the other two settlement agreement obligations, subsequent attempt to address the carpet stain in January 2007 upon Respondent’s learning of its unattended status, Inspector Redman’s finding of substantial compliance with regard thereto and Respondent’s offer to replace the entire carpet shall serve as factors in mitigation.

RECOMMENDED ORDER On the basis of the facts and circumstances of this matter, IT IS RECOMMENDED that, due to Respondent’s failure to achieve timely total compliance with the terms of the settlement agreement regarding the subject carpet stain and in light of Respondent counsel’s representation at the compliance hearing that his client remains ready, willing and able to replace the subject carpeting, Respondent be allowed one, and only one, final opportunity to do so. As a result, IT IS FURTHER RECOMMENDED that, commencing twenty (20) days after the effective date of the Order entered in this compliance proceeding, the Class B license of Respondent be suspended unless and until the Registrar of Contractors receives written proof that Respondent has caused the removal of the affected carpet and installation of the new carpet by a duly licensed subcontractor in Complainants’ residence in accordance with applicable workmanship standards. IT IS FURTHER RECOMMENDED that the parties be required to adhere to the minimum twenty-four (24) hour written notice requirement of the settlement agreement to accomplish this task.[3] IT IS FURTHER RECOMMENDED that, if Respondent satisfactorily causes the accomplishment of the above-referenced carpet removal and replacement on or before the expiration of twenty (20) days from the effective date of the Order entered in this compliance hearing or in the event Complainants unreasonably deny Respondent’s duly authorized licensed subcontractor access to accomplish such obligation, the aforementioned license suspension shall not take place and Respondent shall be relieved of any further obligation to perform any work hereunder and shall be deemed to have complied with the subject settlement agreement.[4] Done this day, July 24, 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] At the hearing it was noted by the parties that Complainants’ Exhibits C-8 and C-9 were also Respondent’s Exhibits R-27 and R-28, respectively. [2] At the hearing, Complainant D. Kolar brought to the attention of the Administrative Law Judge that Respondent’s license no. 143263 had been suspended. Although Complainants presented no documentary evidence to establish this fact, D. Kolar further asserted that Respondent allowed said license to be suspended and had secured another license to, in effect, continue to perform contracting work and circumvent the authority of the Registrar of Contractors. At that time, Inspector Redman requested permission from the undersigned to address and clarify this issue. Mr. Redman then explained that Respondent’s license no. 143263 had indeed been suspended for non-renewal due to the fact that Respondent had changed the nature of his business entity and formed a limited liability company which required the issuance of a new license. Following the hearing, this tribunal reviewed the database maintained by the ROC and confirmed that license no. 143263 was suspended April 1, 2007 for non-renewal and Respondent had secured license no. 231427, Class KB-01 on April 3, 2007 as a limited liability company for which Mr. Avitabile was listed as a member and the qualifying party. [3] In that the parties have effectively demonstrated to this tribunal their inability to communicate and interact in a rational and controlled manner, it is strongly suggested that Respondent engage the services of a third party subcontractor to attend to the removal of the existing carpet and installation of the replacement product. [4] 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