ALJDEC decisions subject to certification as final

2008A-3942075-ROC · Registrar of Contractors · 2012-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: December 27, 2011 APPEARANCES: Complainants were represented by their attorney, Daniel Ohler, Esq. Avalon Custom Homes, 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 on Compliance: FINDINGS OF FACT 1. Avalon Custom Homes, L.L.C. (“Respondent”) is the holder of License No. B.157428-R issued by the Registrar of Contractors (“Registrar”). 2. Ed and Chris Hopple (“Complainants”) are the owners of subject residence in this matter. 3. On December 3, 2009, the Registrar issued an Order in Case No. 2008- 3942075, formerly H08-0394 (“December 3, 2009 Order”), providing that Respondent’s contracting license would be revoked on the effective date of the Order unless Respondent fully complied with the Registrar’s May 12, 2008 Corrective Work Order. If the Registrar accepted proof of Respondent’s timely compliance, then no revocation was to be imposed but, instead, Respondent’s contracting license would be suspended for 10 days followed by a period of probation for 120 days. Respondent was also ordered to pay a $500.00 civil penalty to the Registrar within 30 days from the effective date of the Order or risk revocation of its contracting license. 4. A dispute arose between the parties concerning whether Respondent complied with the Registrar’s December 3, 2009 Order or whether Complainants deprived Respondent of reasonable access to their property necessary to perform the required remedial work. The Registrar forwarded the above-entitled matter to the Office of Administrative Hearings, an independent agency, for a compliance hearing to determine whether Respondent complied with the Registrar’s December 3, 2009 Order. 5. The commencement of the compliance hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. The Office of Administrative Hearings did not receive any form of communication from Respondent indicating that its authorized representative was running late. After the delay, the Administrative Law Judge conducted the compliance hearing in Respondent’s absence.[1] 6. By its failure to appear at the hearing, Respondent failed to present any evidence to establish that it complied with the Registrar’s December 3, 2009 Order requiring remedial repairs or that Complainants denied Respondent reasonable access to perform those repairs. 7. On September 28, 2011, Respondent made a monetary settlement offer to Complainants regarding Corrective Work Order item 3a, which pertains to a cracked granite countertop to the left of Complainants’ stove. Complainants accepted Respondent’s offer. At the pre-hearing jobsite inspection on December 22, 2011, Respondent presented a check payable to Complainants. Complainants agree that item 3a will no longer be at issue if the check is honored. 8. The evidence of record established that Respondent failed to timely comply with the following items in the Corrective Work Order: 6a, pertaining to exposed headers; 7a ,relating to a double under mount sink in the laundry room; 7b, concerning the installation of an ironing board in the laundry room, although Complainants’ friends gave them an ironing board that has been installed; 7c, laundry room cabinets that are missing; 9a, pertaining to an upgraded fireplace, exposed wiring, and lack of equipment; 13a , lack of exposed headers; 13b, regarding substandard repairs by Respondent to some exposed headers; and 16b, water leaks under a door and roof drainage directed toward the door. 9. At hearing, Complainants raised the issue of item 24b relating to chips in the exterior door jam in the room across from the powder room. However, the Registrar’s Corrective Work Order did not require Respondent to perform any remedial work to item 24b. 10. Complainant acknowledged that Respondent fully complied with the remaining items in the Corrective Work Order. 11. Mr. Hopple testified that Respondent was not denied reasonable access at any time to his residence. 12. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. B.157428-R was revoked on November 17, 2011.[2] There are two open complaints, two disciplined cases, and two resolved/settled/withdrawn cases against Respondent’s contracting license. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s contracting license does not deprive the Registrar of authority to impose discipline on that license in this matter. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B) (2), Respondent bears the burden to establish that it either complied with the Registrar’s December 3, 2009 Order or that Complainants denied it reasonable access to comply with the Order. 3. Respondent failed to present any evidence to establish that it complied with the Registrar’s December 3, 2009 Order or that Complainant had denied it reasonable access to comply with the December 3, 2009 Order. Therefore, Respondent’s License No. B.157428- R shall be immediately revoked in Case No. 2008-3942075, formerly H08- 0394. RECOMMENDED ORDER ON COMPLIANCE Respondent’s License No. B.157428-R shall be immediately revoked in Case No. 2008-3942075, formerly H08-0394. 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 five days from the date of that certification.

Done this day, January 13, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Although Respondent did not attend the compliance hearing, Respondent did send the Registrar a facsimile with supporting documentation regarding this matter on December 27, 2011. It does not appear that Respondent sent a copy of the filing to Complainants’ counsel. Those documents were not considered at the compliance hearing. [2] Those records do not explain the basis for the revocation.

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