ALJDEC decisions subject to certification as final

2007A-5208503-ROC-com2 · Registrar of Contractors · 2011-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by its Managing Member and Qualifying Party Scotty Evans.

WITNESSES: Cliff Frandsen, ROC Inspector Carrie Holmes, Yavapai County Plans Examiner Mary Bradley Scotty Evans

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a second compliance hearing to determine whether Respondent is in compliance with a Compliance Hearing Order issued by the Registrar of Contractors. That Compliance Hearing Order (“CHO”) required Respondent to perform corrective work. Respondent claims that Complainant unreasonably denied access to perform the work and that, in the alternative, Respondent was diligent in attempting to comply with the CHO, but was prevented from completing the corrective work by the hearing date due to factors outside its control. Procedural Background On August 25, 2008, the Registrar of Contractors (“ROC”) issued an Order of Closing accepting the parties’ settlement of the case, which included Respondent’s agreement to perform seven items of corrective work. The Order of Closing gave Complainant the right to reopen the case should Respondent fail to comply. Thereafter, Complainant filed a request for compliance hearing, which was granted and held on September 21, 2010. This resulted in the issuance of the CHO dated November 4, 2010, that found non- compliance and ordered Respondent to correct two items from the settlement agreement. Thereafter, Complainant alleged failure to comply again. On May 20, 2011, the ROC issued an order granting a second compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that at the compliance hearing the parties are to present evidence as to whether or not Respondent has complied with the CHO: IT IS ORDERED that this matter be set for a second Compliance Hearing . . . to determine whether Complainant has unreasonably interfered with Respondent’s attempts at compliance, or whether Respondent has failed to comply with the terms of the Registrar’s November 4, 2010 Order [CHO], absent unreasonable interference on the part of Complainant. If it is determined that such unreasonable interference has occurred, the Registrar will impose the lingering penalties of the previously entered [CHO] and Respondent’s License shall be placed on a period of day [sic] probation. If it is determined that Respondent has failed to comply with the terms of the Registrar’s November 4, 2010 Order [CHO], absent unreasonable interference by Complainant, then Respondent’s Class B License shall be subject to the immediate imposition of discipline.

. . .

Note: The Registrar notes that this is the final Compliance Hearing that it will set in this matter. Complainant is reminded that she must allow reasonable access to Respondent during the pendency of the Compliance process. Respondent’s License is currently in good standing and Respondent may perform any and all necessary corrective work.

This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the CHO. In addition, Respondent submitted Exhibits R-2 and R-3, which were admitted into evidence. The parties presented testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Complainant did not unreasonably restrict access and that Respondent did not complete the repairs by the time of the hearing. FINDINGS OF FACT 1. Respondent is the holder of license B.222247-R, a general residential contracting license issued by the ROC. Scotty Evans is Respondent’s Qualifying Party. The license has not been suspended in this matter. A brief (nine-day) administrative suspension of the license occurred in August 2011 for lack of bond. Otherwise, Respondent’s license has been current and active from November 2010 to the day of hearing in August 2011. 2. After a compliance hearing held in September 2010, Respondent was ordered by the ROC to repair two items from a prior Settlement Agreement: Item 1, repair a dip in the concrete patio; and Item 3, build an interior wall “as required by [the town of] Dewey-Humboldt.” This order was issued on November 4, 2010, in a CHO that stated it would be effective on December 14, 2010, and that allowed Respondent until that date to perform the corrective work. The CHO did not provide any penalty should Respondent fail to do the work. 3. Within a few days of receiving the CHO, Scotty Evans testified that he began trying to contact Complainant by telephone, voice messages, and e-mail to schedule the work. The evidence shows that Evans sent two certified letters to Complainant, both of which she received on November 26, 2010, asking her to contact him to schedule the work.[1] The second letter, dated November 23, 2010, notes that Evans has spoken to Complainant the night before and that Complainant had informed him that Respondent could not do the work because the building permit had expired. Evans states in the letter that he had spoken to a building official who had confirmed that the permit had expired. Evans then stated in the letter that Complainant needed to renew the permit before he could do any work because the permit had been issued to her and her husband as owner/builders. 4. Complainant responded to the letter by an e-mail dated November 29, 2010, and stated that Respondent was responsible for obtaining a new permit because Respondent was the contractor. She credibly testified at hearing that Dewey-Humboldt’s building officials told her that no work could be done until a permit was in place. 5. On December 6, 2010, Respondent filed with the ROC a request to close the file due to denial of access by Complainant. Complainant objected to the request. 6. Both parties filed motions for rehearing in early December 2010. 7. On May 20, 2011, the ROC issued an Order Denying Requests for Rehearing/Order Setting Compliance Hearing. That order denied the rehearing requests and set this matter for a compliance hearing as described above in the “Procedural Background” section. 8. In June 2011, Respondent began in earnest to try to obtain a permit. However, there were issues with the proposed wall. These issues required engineering and plan reviews by Carrie Holmes of Yavapai County Development Services.[2] Holmes received the paperwork for the permit on July 12, 2011. She inspected the plans and found that corrections were needed, so the file was sent back for corrections. Corrections were made and the file went again to Holmes on July 24, 2011, but further corrections were needed. On August 16, 2011, Holmes received the file again and testified at the hearing that she was still reviewing them but would likely be approving the plans soon. 9. Evans testified that from December 2010 to May 2011, he did nothing because he was waiting for ROC decisions on his request to close for denial of access and his rehearing request. 10. Complainant’s position to not allow the work until Respondent obtained a new permit is found to be reasonable. She credibly testified that if Respondent had obtained the license, she would have allowed the work. The evidence does not show that Complainant unreasonably denied access. 11. Respondent failed to comply with the CHO by the hearing date. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has failed to comply with the CHO.[5] Complainant has met that burden. 2. Under the provisions of the November 4, 2010 CHO, Respondent was to provide written proof that Respondent had properly corrected the items. Respondent’s position that Complainant was required to obtain a new permit was wrong, as Respondent had the burden to comply with the CHO, not Complainant. Respondent chose to do nothing for six months while awaiting a decision from the ROC. By the time Respondent began to pursue a permit with diligence in June 2011, there was still time to obtain the permit, but only if there were no problems with the plans. The evidence shows that Respondent was diligent in June, July, and August 2011, but was not able to complete the permit process before the hearing because of the six-month late-start that was due to Respondent’s decision to wait. 3. Respondent has failed to comply with the CHO. 4. A review of ROC records shows that Respondent’s license has never been disciplined since it was issued in July 2006. RECOMMENDED ORDER IT IS RECOMMENDED that license B.222247-R, held by Evans Construction, LLC, dba Evans Contracting, be suspended immediately until the Registrar receives written proof that Respondent has caused the repairs noted in the November 4, 2010, Compliance Hearing Order to be made and the Registrar of Contractors accepts such written proof.

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, September 7, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit R-2. [2] She testified that Dewey-Humboldt uses the County examiners to do its plan reviews. [3] Arizona Administrative Code (A.A.C.) R2-19-119(B). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] 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