ALJDEC decisions subject to certification as final

06F-M1119-ROC-com2 · Registrar of Contractors · 2008-09-23

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2008 APPEARANCES: Complainant: Serina Johnson appeared, pro per. Respondent: Respondent failed to appear either through any authorized representative or counsel. Registrar of Contractors: Inspector Phil Coscia 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 scheduled to convene August 29, 2006 was vacated by this tribunal on August 29, 2006 pursuant to its Order Vacating Hearing in accordance with a Stipulation to Vacate Hearing (“Stipulation”) submitted by counsel for the parties hereto on August 28, 2006. 2. On September 15, 2006, the Registrar of Contractors (“Registrar/ROC”) issued its Order of Closing which was issued in accordance with this tribunal’s Order Vacating Hearing. 3. On October 2, 2007, the Registrar issued an Order Reopening Complaint and Setting Compliance Hearing (“Order”) based on Complainants’ assertion that the parties had never reached a settlement which precipitated the above-referenced Stipulation. 4. As a result of the above-referenced Order, a compliance hearing was scheduled for January 28, 2008. At that time the parties entered into a settlement agreement the terms of which were set forth in Administrative Law Judge Vanella’s February 11, 2008 Order Vacating Hearing Due to Settlement (“Order 2”). 5. On or about March 4, 2008, Complainant filed a correspondence with the ROC wherein she asserted that Respondent had not complied with the terms of the settlement agreement set forth in Order 2. On or about March 7, 2008, Complainant filed with the Registrar a second correspondence wherein additional violations of the settlement agreement were set forth. 6. On or about March 26, 2008, Respondent filed with the Registrar a correspondence wherein it asserted that materials (windows) required by the settlement agreement had been ordered and would be installed upon delivery and that it had not breached the terms of the settlement agreement. 7. On July 15, 2008, the Registrar issued its Order Reopening Complaint and Setting Compliance Hearing (“Order 3”). 8. This matter convened for a second compliance hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Compliance Hearing dated August 6, 2008. 9. The terms of the aforementioned settlement agreement are as follows: a. Respondent will pay $5,000.00 to Complainants within one week of the hearing date; b. Respondent will pay to Complainants an additional $5,000.00 upon the completion of all work and Complainants’ signing of a completion form verifying Complainants’ satisfaction with Respondent’s work; c. Respondent will install baseboard in all rooms where baseboard is missing and match the baseboard to existing and also paint to match existing; d. Complainants’ SG 1000 electronic air filter in the air conditioning unit will be repaired or replaced to ensure that it is functioning properly, and Respondent will explain to Complainants how to operate the equipment; e. Respondent will repair or replace windows and the patio door in order to ensure that all are operational, properly locking, square, and leak proof; f. Respondent will correct and secure the doggie door installation; g. Respondent will replace all window screens, including the patio door screen, with screens manufactured of more durable material in order that the screens are not prone to tearing; h. Respondent will repair the back patio to ensure no further leaks; Respondent will secure the patio so that it is not prone to movement or jostling, and Respondent will replace any parts that have been broken or have fallen off; i. Respondent will “take care of the drapery rods”; and j. Respondent will immediately contact attorney John Skiba in order to attempt to have him either not file or dismiss the lawsuit he has against Complainants, and Respondent will pay Mr. Skiba up to $3,000.00. 10. At the compliance hearing, Complainant Serina Johnson (“Complainant”) testified but submitted no exhibits. 11. Respondent failed to appear at the compliance hearing either through any authorized representative or counsel. 12. Registrar of Contractors Inspector Phil Coscia (“Coscia”) testified on behalf of the Registrar and described his observations and conclusions regarding his pre-compliance hearing inspection on September 9, 2008. 13. From the evidence elicited at the hearing, the following salient facts are important to consider as they pertain to the respective subsections of the settlement agreement noted: a. Respondent complied with subparagraph (a). b. Respondent did not comply with subparagraph (b). c. Respondent failed to comply with subparagraph (c) as much of the baseboards were missing and/or installed improperly. d. According to Inspector Coscia the subject air filter appeared to functioning properly. However, Respondent failed to instruct Complainant on its function and/or operation in violation of the settlement agreement. e. Respondent complied with subparagraph (e) with the following exceptions: patio door not complete – missing trim, screen not installed, insulation issues, ADT alarm not reconnected after Respondent worked on door and there is a gap at the bottom where the door was cut; master bathroom window improperly installed; one front room window operates improperly; some blinds not installed and/or re-installed correctly; and, kitchen and other windows missing caulk. f. Respondent complied with subparagraph (f). g. Except as set forth in subparagraph (e) hereof, Respondent complied with subparagraph (g). h. Respondent did not comply with subparagraph (h). i. Respondent failed to comply with subparagraph (i) as it pertains to the drapery rods at the patio door and kitchen, master bathroom and front room windows. j. Respondent complied with subparagraph (j).

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 she 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 evidence elicited at the hearing, Complainant established that Respondent breached the parties’ settlement agreement by failing to substantially comply with the numerous provisions of the subject settlement agreement as set forth in Finding of Fact 13. It is determined that such proven breaches by Respondent suggest a determination that Respondent violated A.R.S. §32-1154A (7) and such violations warrant the imposition of disciplinary penalties against Respondent’s license at this time in this case. 4. It is further determined and concluded that Respondent’s failure to act in good faith toward the consummation of the parties’ settlement agreement and failure to appear at the instant hearing shall serve as factors in aggravation in this matter. 5. A review of the licensing database maintained by the Registrar of Contractors indicates that Respondent’s B-03 license No. 206729 was suspended July 11, 2008 for lack of bond.

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the Class B-03 license of Respondent be revoked.[1] Done this day, September 23, 2008.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras, Acting Director 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

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.

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