ALJDEC decisions subject to certification as final

08F-H0424-ROC · Registrar of Contractors · 2009-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 6, 2009. APPEARANCES: Virginia Anderson and Kelly R. Anderson-Hammerli appeared personally. R A N Construction, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. R A N Construction, L.L.C. (“Respondent”) is the holder of License No. 191023, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Virginia Anderson entered into a written Contract dated April 7, 2007 for the construction of a residence located at 2352 S. Kirkland Road, Golden Valley, Arizona. 3. On May 5, 2008, Virginia Anderson filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. H08-0424. 4. On May 22, 2008, Virginia Anderson filed with the Registrar a detailed list of her Complaint items regarding the subject project, the terms of which are incorporated herein by reference. 5. The Registrar’s assigned inspector, Mark Schweiger, performed a jobsite inspection at the subject property to view the Complaint items. That inspection resulted in Inspector Schweiger issuing a Corrective Work Order dated June 19, 2008, which required Respondent to timely perform remedial work to specified Complaint items. Inspector Schweiger’s written directive addressed the items listed in Virginia Anderson’s May 22, 2008 filing. The following items were added to the Corrective Work Order during the jobsite inspection, which were required to be corrected by Respondent: “[t]he door window trim plugs are not installed” and “[t]he garage door openers do not appear completely wired for proper function.” The terms of the Corrective Work Order are incorporated herein by reference. Inspector Schweiger did not require any action by Respondent to Complaint item numbers 8, 9G, and 9H. 6. The Registrar issued a Citation and Complaint in Case No. H08-0424 alleging violations by Respondent of A.R.S. § 32-1154(2), (7), (11), (23), and (3), namely A.A.C. R4-9-108. 7. The Registrar forwarded Case No. H08-0424 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing in Case No. H08-0424 advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 9. On September 8, 2009, the Administrative Law Judge issued an Order Adding Kelly R. Anderson-Hammerli as Co-Complainant, as requested by Virginia Anderson (Virginia Anderson and Kelly R. Anderson-Hammerli are hereinafter jointly referred to as “Complainants”). Ms. Anderson- Hammerli is Ms. Anderson’s daughter and co-owner of the subject property. 10. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 11. Respondent failed to comply with the Registrar’s Corrective Work Order. 12. Respondent deviated from plans or specifications. The Corrective Work Order provides a factual basis for this Finding of Fact. 13. Complainant failed to present any credible evidence that Respondent failed to pay any contractor or supplier in excess of $750.00. 14. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 191023 was cancelled on October 14, 2008. The cancellation of Respondent’s contracting license prohibits Respondent from performing or subcontracting any of the above-described remedial repairs to its deficient workmanship. Those records further reflect two resolved/settled/withdrawn complaints listed against the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the cancellation of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline on the license for proven statutory and/or regulatory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (7), (23), and (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. There is insufficient evidence to conclude that Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as cited in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 191023 shall be revoked on the effective date of the Order entered in Case No. H08-0424. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. H08-0424 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, October 26, 2009

______________________________________ Brian Brendan Tully 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 ___________________________

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