ALJDEC decisions subject to certification as final

09F-6269-ROC · Registrar of Contractors · 2010-02-05

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2010

APPEARANCES: Complainant appeared and testified on his own behalf; no one appeared on behalf of Respondent. ROC Inspector Beau Cruz appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Rob Hummel brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Garages and Portable Buildings, Inc. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant presented evidence and testimony from himself and Inspector Cruz at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license unless corrective work is completed. FINDINGS OF FACT 1. Respondent Garages and Portable Buildings, Inc. is the holder of a class KB-02 license (No. 216562), a dual residential and small commercial contractor’s license issued by the Registrar of Contractors. It authorizes Respondent to perform general residential and general small commercial construction. Mary Rose Yara is Respondent’s company President. Meguel Garcia is Respondent’s Qualifying Party. The license is currently suspended for lack of bond as of January 17, 2010. 2. In June 2009, Complainant filed a complaint with the ROC listing several complaint items associated with a garage addition that Respondent had been hired by Complainant to build. An inspection was performed and ROC Inspector Beau Cruz issued a Corrective Work Order (“CWO”). The CWO ordered Respondent to correct cracking stucco and splotchy painting of the garage. 3. Respondent did not perform any of the corrective work. In fact, Respondent did not attend either the pre-CWO jobsite inspection or the pre- hearing jobsite inspection. 4. Complainant requests that the corrective work be done. 5. Complainants’ evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainants have met that burden. 2. The evidence shows poor workmanship by Respondent and a failure to correct its work by complying with the CWO. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. 3. A review of current ROC records shows that Respondent’s license was suspended on January 17, 2010 for lack of bond. Pursuant to A.R.S. § 32-1154(C), suspension of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license in this matter. 4. Respondent’s failure to appear at the hearing and give an account of its actions is considered a serious breach of Respondent’s duties as a licensed contractor. Therefore, revocation is warranted. 5. The appropriate sanction in this matter is to revoke Respondent’s license and allow Complainant to make a claim to the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that Class KB-02 license 216562, held by Respondent Garages and Portable Buildings, Inc. 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 5th day of February 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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