ALJDEC decisions subject to certification as final

07F-2619-ROC · Registrar of Contractors · 2009-01-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2009 APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by corporate officer Jeff Glover. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The sole and primary issue to be determined hereunder was whether or not Complainant unreasonably denied access to the Respondent, when Respondent attempted to comply with the January 10, 2008 Default Decision and Order in the above –enumerated case that provided that Respondent’s license would be suspended “until the Registrar receives proof that Respondent has appropriately rectified the items involved and detailed in the Complainant and the Agency’s Directive.” 2. The evidence of record at the Compliance Hearing, as well as the entire case file, revealed that on January 10, 2008, the Registrar issued a Default Decision and Order that that provided that Respondent’s license would be suspended “until the Registrar receives proof that Respondent has appropriately rectified the items involved

and detailed in the Complainant and the Agency’s Directive.” In that same Decision and Order, Complainant was advised that “any unreasonable denial of access to the Respondent or Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline.” 3. On August 11, 2008, Respondent sent Complainant a letter by way of certified mail, return receipt requested, requesting Complainant contact Respondent with a time and date when Complainant would be available to allow Respondent to enter Complainant’s home and inspect and determine the “time frame and efforts needed to correct by appropriate means.” While someone signed for receipt of the August 11, 2008 letter, Complaint stated she did not receive the letter and neither party recognized the name of the individual, A. Valerie, who signed for, and accepted delivery of, the August 11, 2008 certified letter addressed to Complainant. 4. On August 21, 2008, after receiving no response to the August 11, 2008 certified letter to Complainant, Respondent filed a request for a Compliance Hearing with the Registrar of Contractors. In response to Respondent’s request for a Compliance Hearing, on September 11, 2008, the Registrar of Contractors issued an Order Setting Compliance Hearing to the Parties. 5. On September 9, 2008, Respondent sent a second certified letter, return receipt requested, to Complainant. The September 9, 2008 letter stated that “in order for us to effectively correct these items according to the inspector’s report, we need to be given the opportunity to inspect and evaluate the listed items on site…Please contact us…to schedule…” Delivery of this letter was accepted by Complainant’s father. Complainant’s father testified he was assisting the Complainant with her case and also picked up her mail for her. 6. On September 19, 2008, Complainant wrote back to Respondent. Complainant, in her letter, did not grant access to Respondent but implied access would be granted conditionally on the following: a. Access would be granted if the Registrar of Contractors would agree to have one of its inspectors “facilitate the assessment”; and b. The Compliance Hearing will continue “to move forward with a verification and validation of your claim [of denial of access].” 7. Complainant also sent a letter to the Registrar of Contractors on September 19, 2008 requesting the Registrar of Contractors: a. Move forward with a Compliance hearing; b. Have a Registrar of Contractors Inspector act as a “neutral third party in facilitating any site visit and assessment of the repair work”; and c. Require Respondent to “reimburse my costs for items they should have fixed or replaced.” 8. On September 22, 2008, Respondent sent a third certified letter, return receipt requested, to Complainant. The letter was also sent by way of regular mail. The certified letter was not picked up. Complainant’s father, however, testified that he and Complainant received the September 22, 2008 letter, apparently by way of regular mail. The September 22, 2008 letter again requested access and provided four specific dates and times, in late September and early October, when Respondent would be available to address the listed issues. 9. On September 29, 2008, Complainant wrote back to Respondent denying access until she heard from the Registrar of Contractors as to whether the Registrar of Contractors would assign an Inspector to facilitate any access. Complainant never contacted Respondent again. 10. The evidence of record is clear that Respondent made numerous reasonable attempts to substantially comply with the directive of the January 10, 2008 Decision and Order. 11. The evidence of record also established that Complainant placed unreasonable conditions on the granting of access to Respondent when Respondent requested access in its September 9, 2008 and September 22, 2008 letters. In Complainant’s September 29, 2008 letter to Respondent, Complainant took it upon herself to advise Respondent when access would be granted, yet Complainant never contacted Respondent again. Thus, by her imposition of conditions and by her silence as to when those conditions would be lifted Complainant has unreasonably denied access to Respondent. 12. Under all the circumstances, as shown by the credible evidence at the Compliance Hearing, it is found and determined that Respondent has substantially complied with the applicable terms and conditions of the January 10, 2008 Decision and Order and the unreasonable denial of access by Complainant should be treated as compliance by the Respondent and should result in the case being closed without discipline.

CONCLUSIONS OF LAW 1. The testimonial and documentary evidence adduced at the Compliance Hearing supports a determination that Respondent has substantially complied with all the applicable terms and conditions of the January 10, 2008 Decision and Order and the unreasonable denial of access by Complainant should be treated as compliance by the Respondent and should result in the case being closed without discipline. . RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar enter an Order that confirms that Respondent has substantial complied with the January 10, 2008 Decision and Order and also confirms that the entire Citation and Complaint in Case Number 07-2619 should be closed without discipline.

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 will be forty (40) days from the date of that certification.

Done this day, January 28, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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