ALJDEC decisions subject to certification as final

2008A-51660-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2011

APPEARANCES: Ralph Phillips, Corporate Officer with Pyramidal Apex, Inc. dba Phillips Homes, appeared on behalf of Complainant; no one appeared on behalf of Respondent.

WITNESSES: Cliff Frandsen, ROC Inspector Ralph Phillips

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent is in compliance with an Order issued by the Registrar of Contractors. That Order required Respondent to perform corrective work or make monetary restitution to Complainant. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On June 19, 2009, the Registrar of Contractors (“ROC”) issued an Order that gave Respondent 40 days to perform corrective work described in an Administrative Law Judge Decision that the ROC adopted. The work concerned metal railings that needed various minor corrections. The Order also provided that Respondent could make monetary restitution to Complainant. If Respondent did not complete the work or provide restitution in the time provided, its license was to be suspended. On January 6, 2010, the ROC suspended Respondent’s license for failure to comply with the Order. Thereafter, Respondent contacted the ROC claiming that it was in compliance with the Order. Complainant disputed that claim. In October 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that the parties are to present evidence as to “whether or not Respondent has complied with the terms of the [Order].” This tribunal entered the complaint file received from the Registrar of Contractors into the record, including documentation relating to the underlying complaint and relating to the question of compliance with the Order. Complainant presented testimony and Exhibits C1 through C16 at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent has not complied with the Order. FINDINGS OF FACT 1. Respondent is the holder of license K-56.186180-D, a dual specialty contracting license issued by the ROC. The license authorizes Respondent to perform welding work for both commercial and residential projects. Karl Schmutz is Respondent’s Qualifying Party. The license was revoked on September 28, 2011, for failure to pay a civil penalty. 2. ROC Inspector Cliff Frandsen testified that he performed a compliance inspection on December 12, 2011, and found that none of the four items for correction (CWO items 1, 2, 6, and 7) had been completed properly. He saw evidence of an attempt to correct, but the results were not aesthetically acceptable. 3. Ralph Phillips testified to the same thing. He confirmed that Respondent has tried to make the corrections, but had given up and left the project. 4. Complainant’s evidence is uncontested. 5. The evidence does not show that Respondent is in compliance with the Order. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Since Respondent has asserted that it should be deemed to be in compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the ROC Order.[3] Respondent has failed to meet that burden. 2. As noted, the evidence does not show compliance with the Order. RECOMMENDED ORDER IT IS RECOMMENDED that license K-56.186180-D, held by Crossbow Enterprises, Inc., be revoked for failure to comply with the Order.

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, December 22, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [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).

-----------------------

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