ALJDEC decisions subject to certification as final

2007A-8453919-ROC-com · Registrar of Contractors · 2010-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Thomas S. Moring, Esq. The Respondent appeared through its authorized representative, Ray Tanner. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether Complainant unreasonably denied Respondent access to comply with the terms of the Registrar of Contractor’s (Registrar’s) April 22, 2008 Order. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Registrar’s “Order Denying Request to Close Due to Denial of Access/Order Setting Compliance Hearing” provides, in relevant part, as follows: At the Compliance Hearing, the parties may present evidence and testimony regarding Respondent’s attempts at compliance and whether Complainant unreasonably denied Respondent or its representatives access to the residence to perform the necessary repairs. If it is determined that Respondent failed to comply with the terms of the April 22nd Order, absent an unreasonable denial of access, then its license shall be subject to the immediate imposition of discipline. If it is determined that Complainant unreasonably denied access to Respondent or its representatives to comply with the terms of the April 22nd Order, then this matter shall be closed, and Complainant will not be eligible to receive a payout from the Residential Contractors’ Recovery Fund. 2. The Respondent’s owner and qualifying party, Ray Tanner, testified that the Respondent had attempted to contact the Complainant three times via certified mail and that the Complainant has repeatedly failed to accept the certified mail. 3. Mr. Tanner also asserted that he had repeatedly knocked on the Complainant’s front door in an attempt to gain access to the Complainant’s residence and that the Complainant always refused to open the front door. 4. Credible testimony and evidence established that the Respondent mailed something to the Complainant’s address via certified mail on December 22, 2008, January 15, 2009 and January 21, 2009. 5. There was no credible evidence as to the contents of the envelopes mailed to the Complainant via certified mail. 6. The Complainant denied ever receiving any written requests for access to her residence from the Respondent or the Respondent’s representatives and denied that she had ever refused to answer her front door. 7. The Complainant testified that she has not received an oral request for access to her residence to perform the designated corrective work on her residence from the Respondent or any representative of the Respondent. 8. The Registrar’s April 22, 2008 Order became effective on June 1, 2008. There was no dispute that the Respondent did not attempt to contact the Complainant via certified mail until December 22, 2008, over six (6) months after the effective date of the Registrar’s April 22, 2008 Order. 9. There was no dispute that the Respondent was able to obtain a civil judgment against the Complainant for monies that were due to the Respondent pursuant to the terms of the parties’ construction agreement. 10. Credible testimony and evidence established that the Complainant fully satisfied the civil judgment that had been obtained by the Respondent on January 21, 2009. 11. Credible testimony and evidence presented at hearing established that the Complainant’s attorney and the Respondent’s then attorney were in repeated contact via email from November 10, 2008 through January 20, 2009, and that there was no request for access to the Complainant’s residence made by the Respondent or Respondent’s then counsel during that period of time. 12. Credible testimony and evidence supports a finding that the Complainant did not receive a request for access to her residence from either the Respondent or the Respondent’s representatives after the Registrar’s Order was issued on April 22, 2008. 13. Credible testimony and evidence supports a finding that there has been no unreasonable denial of access to the Respondent or the Respondent’s representatives by the Complainant. 14. There was no dispute that the Respondent has not performed the corrective work set forth in the Registrar’s April 22, 2008 Order. 15. Credible testimony and evidence established that the Respondent has failed to comply with the terms of the Registrar’s April 22, 2008 Order. 16. Credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms and conditions of the prior Order of the Registrar of Contractors. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to properly accomplish compliance with the terms and conditions of the prior Order and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the prior Order of the Registrar of Contractors. CONCLUSIONS OF LAW 1. Credible testimony and evidence presented during the compliance hearing supported findings that establish that the Complainant did not unreasonably deny access to the Respondent. 2. Credible testimony and evidence supported findings which establish that the Respondent has failed to comply with the terms of the Registrar’s Order of April 22, 2008. 3. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. RECOMMENDed order on compliance hearing In view of the foregoing, it is recommended that the Respondent’s License No. B-3.196670(R be revoked. In the event of certification of this 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 the certification.

Done this day, August 25, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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