ALJDEC decisions subject to certification as final

2008A-24823512-ROC-com · Registrar of Contractors · 2010-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2010 at 1:00 p.m. APPEARANCES: The Complainants appeared through Larry Burke. The Respondent appeared through its attorney, Richard Alcorn. A court certified sign language interpreter, Ms. Helen Young, was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms and conditions of the previously entered Decision and Order of the Registrar of Contractors or whether there has been an unreasonable denial of access by the Complainants. 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 Order Setting Compliance Hearing provides, in pertinent part, as follows: If it is determined that Respondent has failed to fully comply with the terms set forth in the May 21st Order, absent unreasonable interference or denial of access by Complainants, then Respondent’s Class B License No. 168846 shall be subject to the immediate imposition of discipline. If it is determined that Complainants have unreasonably interfered or denied access to Respondent or its representatives in their attempt to comply with the Registrar’s May 21st Order, then Respondent’s Class B License No. 168846 shall be placed on disciplinary probation for a period of 120 days in accordance with the Registrar’s May 21st Order, and Complainants shall not be granted access to the Residential Contractors’ Recovery Fund, even if otherwise found to be eligible. 2. Credible testimony and evidence established that the Respondent had arranged with the Complainants, via email, a date for access to the Complainants’ residence to perform the corrective action required in the Registrar’s May 21st Order. 3. Credible testimony and evidence established that in reliance on the agreed upon date for access, the Respondent had retained a licensed subcontractor to create and install a metal screen to prevent water intrusion into the Complainants’ attic vent to comply with the terms of the Registrar’s May 21st Order. 4. Credible testimony and evidence established that the Respondent’s subcontractor designed and manufactured the water intrusion prevention screen and was driving to the Complainants’ residence to install the new water intrusion prevention screen when the Complainants informed the Respondent that the Respondent’s subcontractor would not be granted access to the Complainants’ residence unless the subcontractor was going to replace the attic vent in their residence. 5. There was no dispute that the parties had been previously informed that the manner of attempting to correct the water intrusion in the Complainants’ attic vent in an attempt to comply with the Registrar’s May 21st Order was a decision to be made by the Respondent. 6. Credible testimony and evidence established that the Complainants’ denial of access to the Respondent and the Respondent’s selected subcontractor on the agreed upon date scheduled for the repair of the Complainants’ attic vent was unreasonable. 7. The Complainants’ unreasonable denial of access is found to have prevented the Respondent and the Respondent’s representative from performing their selected method of correcting the unacceptable condition of the Complainants’ attic vent. CONCLUSIONS OF LAW 1. Credible testimony and evidence supported findings which establish that the Complainants have unreasonably denied access to the Respondent and the Respondent’s representative in their attempt to comply with the Registrar’s May 21st Order. RECOMMENDed Order on compliance hearing In view of the foregoing, it is recommended that the Respondent’s Class B License No. 168846 shall be placed on disciplinary probation for a period of 120 days in accordance with the terms of the Registrar’s May 21st Order and that the Complainants not be granted access to the Residential Contractors’ Recovery Fund, even if otherwise found to be eligible. 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, October 28, 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