ALJDEC decisions subject to certification as final

07F-2436-ROC-com · Registrar of Contractors · 2009-07-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2009 APPEARANCES: Complainants: Complainants did not appear at the hearing but were represented by counsel, Paul M. Levine. Respondent: Respondent failed to appear either through an authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Based on the record[1] in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are issued: FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC/Registrar”) dated April 21, 2009. 2. The record indicates that the original hearing in this matter took place January 15 and June 2, 2008. As a result of that hearing, on June 23, 2008, the undersigned issued an Administrative Law Judge Decision and Order (“D&O”). By its Order dated July 11, 2008 (“Order”), the Registrar adopted the terms of the D&O which was to become effective on August 20, 2008. 3. In the D&O, Respondent was determined to have violated A.R.S. § 32-1154 (A) (1) and (7) as pertain to the failure to “install the subject iron door and remaining auxiliary items in January 2007.” 4. Based on the Findings of Fact and Conclusions of Law in the D&O, the undersigned recommended that …commencing twenty (20) days from the effective date of the Registrar’s Order entered in this matter, the Class K-05 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished by appropriate action, by a licensed subcontractor as necessary, the installation of the subject iron door, remaining inserts and all auxiliary items required by the parties’ agreement as set forth in Conclusion of Law 4 or, alternatively, remitted to Complainants a sum adequate to allow Complainants to retain a third party contractor to complete said work.

Notwithstanding the parties’ reported dispute regarding payment of the balance due on the agreement at their January 2007 meeting, the instant record failed to establish any grounds to justify a departure from the long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. Aside from the instant complaint, Respondent had but an eight (8) day probation period arising from Case No. G07-1140. Given this and the factual dispute between the parties regarding time of payment under their agreement, Complainants have provided this tribunal with no legitimate reason to depart from the aforementioned Registrar of Contractor’s policy to afford Respondent an additional opportunity to correct its work. Therefore, proof of unreasonable and unjustified denial of access by Complainants to allow performance of said work by Respondent and/or its duly licensed subcontractor(s) will constitute compliance with this Order.

IT IS FURTHER RECOMMENDED that if Respondent and/or its duly licensed subcontractor(s) accomplish the above-described work in a proper workmanlike manner or is/are denied access to perform same, or alternatively, Respondent remits to Complainants a sum adequate to allow Complainants to retain a third party contractor to complete said items on or before the effective date of this Order then, in that event, no license suspension shall take place due to Respondent’s failure to comply with this portion of the Order.

IT IS FURTHER RECOMMENDED that, notwithstanding the absence of any suspension required to be imposed as set forth above, Respondent’s K-05 license be placed on probation for a period of one hundred twenty (120) days commencing at he conclusion of any referenced suspension or on the effective date of this Order, as applicable, due to Respondent’s failure to (1) timely manufacture the approved iron door and related items and (2) twice timely deliver the contracted for products.

5. On August 13, 2008, Respondent filed with the Registrar Respondent’s Motion to Dismiss Based Upon Denial of Access (“motion 1”) wherein it asserted, in general, that Respondent had made efforts to perform the work required by the D&O and Complainants failed to provide access to do so. 6. On August 22, 2008, Complainants filed Claimant’s Response to Respondent’s Motion to Dismiss Based Upon Denial of Access (“response 1”) wherein they objected to motion 1 and asserted, inter alia, that they had provided Respondent with reasonable access to perform the work required by the D&O and “offered to stipulate to extend the time to complete the work.” 7. On October 21, 2008, Respondent filed Respondent’s Request to Dismiss Complaint Due to Denial of Access (“motion 2”) wherein it asserted, inter alia, that it had made “multiple attempts…to gain access to Plaintiffs’ home in order to install the custom iron work entry door and decorative products…[and that] there is no question that Claimants denied access to Respondent….” 8. On October 31, 2008, Complainants filed Claimant’s Response to Respondent’s Request to Dismiss Complaint (“response 2”) wherein they contended, inter alia, that “there has been absolutely no effort by the Respondent to comply with the Registrar’s Order…[and] Respondent was advised of dates certain when it could begin and finish work.” 9. On March 27, 2009, the Registrar issued its Order Denying Motion to Dismiss and Setting Compliance Hearing (“Order 2”). [2] Therein, the Registrar set forth a history of the pleadings filed by the parties and the parties’ assertions regarding compliance and access, denied Respondent’s motion to dismiss and ordered that a compliance hearing be scheduled in the expedited course of docketing. 10. Complainants failed to personally appear at the hearing but were represented by counsel, Paul M. Levine (“Levine”).[3] In lieu of Complainants’ testimony, counsel requested an opportunity to testify and present evidence of his efforts to communicate with Respondent’s counsel regarding the scheduling of the work required by the Registrar’s Order. Mr. Levine further requested that the tribunal take administrative notice of the Registrar’s file in this matter which included response 1 and response 2 and exhibits attached thereto. Levine also submitted Exhibit 1 which was marked, admitted and considered. 11. Respondent failed to appear either through authorized representative or counsel. 12. A review of the licensing database maintained by the Registrar indicated that Respondent’s license was suspended May 23 through June 4, 2007 for lack of bond, placed on probation January 28 through February 4, 2008 (G07-1140) and cancelled March 16, 2009. 13. Levine testified regarding his numerous communications with Respondent’s counsel regarding dates provided to Respondent to perform the subject work and that, notwithstanding such efforts, Respondent still has failed to install the subject iron door and its attachments and/or remit to Complainants a sum sufficient to enable them to retain the services of a third party contractor to perform such work.

CONCLUSIONS OF LAW 1. The Registrar 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 Respondent filed two motions to dismiss wherein it asserted, in essence, that it had attempted to comply with the Registrar’s Order and was prevented from doing so by Complainants’ denial of access, it has the burden of proof and must establish those facts 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. As is evident by its non-appearance, Respondent presented no evidence at the hearing to support the assertions set forth in its motions and 2. Moreover, Complainants’ counsel credibly testified regarding his efforts to provide access to Respondent to perform the work required by the D&O. 3. Based Respondent’s absence at the hearing and the evidence elicited at the hearing by Complainants by and through their counsel, it is determined and concluded that Respondent failed to demonstrate by a preponderance of competent, probative and relevant evidence that it complied with the referenced D&O, as adopted by the Registrar’s Order, as it pertains to the work to be performed on the subject iron door and attachments or, alternatively, monies to be remitted to Complainants to enable them to retain a third party contractor to perform such work. As a result, it is determined and concluded that Respondent failed to timely and substantially comply with the above-referenced D&O and Registrar’s Order based thereon. 3. It is further determined and concluded that Respondent’s failure to comply with the D&O and Order constitute violations of A.R.S. § 32-1154 (A) (1) and (7) and, as such, warrant the imposition of disciplinary sanctions against Respondent’s license at this time in this case. 4. It is further determined and concluded that Respondent failed to act in good faith regarding its obligations under the D&O and Order which lack of good faith was further demonstrated by its failure to appear at the instant hearing. … … RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the Class K-05 license of Respondent be revoked.[4] Done this day, July 29, 2009.

_________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] The record consists of those documents found within the Registrar of Contractors’ file, the content of which the Administrative Law Judge took Administrative notice, the exhibits offered by the parties and admitted into evidence and the digital record of the proceedings under A.A.C. R2-19- 121 [2] It should be noted that Order 2 was actually dated March 27, 2008. However, given that the D&O was issued June 23, 2008 and all reported events took place thereafter, it was understood by the undersigned that the date of Order 2 was a typographical error. [3] Mr. Levine related that Complainants were both unexpectedly required to be out of town due to a medical condition being experienced by Mrs. Klinger. [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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