ALJDEC decisions subject to certification as final

08F-2290-ROC · Registrar of Contractors · 2010-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2010 APPEARANCES: Complainant Candice Miracle appeared on her own behalf. Respondent Porter Plumbing, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT 1. The hearing in this matter convened on March 1, 2010 at 1:00 p.m., pursuant to a Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC”), to determine whether or not Respondent Porter Plumbing, Inc. (“Porter”), has “fully complied with the terms set forth in the Registrar’s February 2, 2009 Default Decision and Order.” On the date and at the time scheduled for the hearing, Complainant Candice Miracle appeared on her own behalf. Porter failed to appear or be represented. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Porter, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Porter’s absence.

2. On February 6, 2008, Ms. Miracle filed a complaint against Porter with the ROC alleging deficiencies in the installation of a shower for which Ms. Miracle alleged that Porter was responsible. 3. On October 2, 2008, the ROC issued a Citation and Complaint charging Porter with alleged violations of A.R.S. §§ 32-1154(A)(2), (A)(3), (A)(7), and (A)(23). Porter failed to timely file a written Answer to the Citation and Complaint. Consequently, on February 2, 2009, the ROC issued a Default Decision and Order concluding that Porter had violated the charged provisions of this State’s contracting laws, and ordered that Porter’s Class C-37R license be suspended on the effective date of the Order “until the Registrar receives proof that [Porter] has appropriately rectified the items involved and detailed in the Complaint and the Agency’s written directive.” The Default Decision and Order further ordered Porter to pay a $250.00 civil penalty. The Order further specified that any request for rehearing must be filed on or before March 9, 2009. 4. On March 11, 2009, Porter fled a Request for Rehearing with the ROC. On July 16, 2009, the ROC denied Porter’s Request for Rehearing. 5. After receiving written correspondence from both parties, on November 17, 2009, the ROC issued an Order Setting Compliance Hearing. The Order Setting Compliance Hearing indicated that “the parties may present evidence and testimony as to whether or not [Porter] has fully complied with the terms set forth in the Registrar’s February 2, 2009 Default Decision and Order, absent unreasonable interference or denial of access by [Ms. Miracle].” 6. At hearing, ROC Inspector Jim Hennessy testified that he performed a compliance inspection on January 26, 2010, at which only Ms. Miracle was present. A representative for Porter did not appear. Inspector Hennessy testified that the shower continues to leak, the soap dish remains broken, and the sealing strips remain improperly installed. The hole in the east exterior wall for the over flow pipe has been repaired. Inspector Hennessy testified that it appears that Porter attempted to perform corrective work to the shower. However, Porter created more damage by imprinting a footprint in glue on the shower floor, installing discolored fiberglass caulk, and discoloring the wall and seat of the shower in an attempt to repair the leak. Inspector Hennessy testified that Porter failed to comply with the ROC’s directives contained in the Corrective Work Order. 7. Ms. Miracle credibly testified that Porter had access to her home to make the necessary repairs as either she or her housemate were available at all times. Ms. Miracle testified that Porter had promised to make the repairs and hired another contractor to perform the required work. However, the subsequent contractor could not repair the leak. Porter then promised to replace the shower and failed to do so. Ms. Miracle acknowledged that Porter repaired the hole in the east exterior wall. However, Ms. Miracle further testified that Porter failed to comply with the remainder of the Corrective Work Order. 8. The Administrative Law Judge finds, based on the weight of the credible evidence presented at hearing, that Porter failed to fully comply with the terms set forth in the ROC’s February 2, 2009 Default Decision and Order, and that Ms. Miracle did not unreasonably interfere or deny Porter access to comply. CONCLUSIONS OF LAW 1. Ms. Miracle has sustained her burden of proving that Porter has failed to comply with the ROC’s February 2, 2009 Order, and that she did not unreasonably interfere or deny Porter access to achieve compliance. See Arizona Administrative Code Rule R2-19- 119. 2. In view of Porter’s failure to comply with the ROC’s February 2, 2009 Order, and in accordance with the November 17, 2009 Order Setting Compliance Hearing and the December 30, 2009 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Porter’s Class C-37R license.[1]

RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that Porter’s Class C- 37R license shall be revoked. 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 40 days from the date of that certification. Done this day, March 3, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the ROC’s official records revealed that Porter’s contracting license was suspended on September 1, 2009, for nonrenewal, and suspended on December 23, 2009, in Case No. 09-3187 until compliance with the Order entered in that matter. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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