ALJDEC decisions subject to certification as final

2009A-11760340-ROC · Registrar of Contractors · 2011-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent appeared through LLC Member Reyes Bojorquez, accompanied by Fausto Bojorquez.

WITNESSES: Scott Deering, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a compliance hearing to determine whether Respondent has violated A.R.S. § 32-1154(A)(7) (prohibiting the doing of a wrongful or fraudulent act), (A)(3) through A.A.C. R4-9-108 (prohibiting poor workmanship) and (A)(23) (requiring compliance with a Corrective Work Order) as well as whether Respondent has “breached the terms set forth in the parties’ Settlement Agreement.” That agreement required Respondent to resurface Complainant’s pool and required Complainant to provide access to do so. Procedural Background On October 30, 2009, the Registrar of Contractors (“ROC”) issued an Order of Closing that accepted the terms of a Settlement Agreement (“Agreement”) between the parties. The terms of that Agreement were written into an Administrative Law Judge Decision dated October 5, 2009, and provided that Respondent resurface Complainant’s pool by a certain date. On July 22, 2011, the ROC issued an Order Reopening Complaint and Setting Compliance Hearing based on Complainant’s allegation that Respondent had not complied with the Agreement. Introduction The ROC’s Order Reopening Complaint and Setting Compliance Hearing states that the parties may present evidence and testimony as to whether or not Respondent has engaged in conduct constituting violation of A.R.S.§ 32- 1154(A)(7), (23) and (3), namely R4-9-108, as set forth in the Citation and Complaint and breached the terms set forth in the parties’ Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.[1]

This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint as well as relating to the question of compliance with the Settlement Agreement. Complainant presented the testimony of ROC Inspector Scott Deering at the compliance hearing, and Respondent admitted failure to comply with the Agreement. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that the Respondent is not in compliance with the Settlement Agreement and has violated the ROC statutes in the Citation and Complaint. FINDINGS OF FACT 1. Respondent is the holder of license C-36.199670-R, a specialty contracting license issued by the ROC. The license authorizes Respondent to perform plastering work for residential properties. Fausto F. Bojorquez is Respondent’s Qualifying Party. The license expired October 1, 2011.[2] 2. The underlying complaint concerned the workmanship of the surface of Complainant’s pool. A Corrective Work Order (“CWO”) was issued to correct the condition. Respondent failed to do so and a hearing was set. The parties appeared for the hearing on October 5, 2009, and resolved the matter through settlement. As noted in the Administrative Law Judge Decision issued the same day and adopted by the ROC on October 30, 2009, Respondent agreed to resurface Complainant’s pool per specific provision in the Agreement by October 15, 2010. Complainant agreed to give Respondent access upon reasonable notice. 3. ROC Inspector Scott Deering testified at the compliance hearing that he inspected the pool on September 19, 2011, and found that no work had been done on Complainant’s pool. Respondent’s representative admitted that no work had been done because Respondent is out of business. 4. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[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 violated the statutes cited in the Citation and Complaint[5] and that Respondent has failed to comply with the terms of the Agreement. Complainant has met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibiting poor workmanship), (A)(7) (prohibiting the doing of a wrongful or fraudulent act), and (A)(23)(requiring compliance with a Corrective Work Order). The evidence is sufficient to show that Respondent has violated those provisions. 3. Respondent has failed to properly perform the work and has failed to comply with the CWO and Agreement. 4. Respondent’s license has expired. Pursuant to A.R.S. § 32- 1154(C), the expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license. 5. Respondent should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that license C-36.199670-R, held by La Fuente Pool Plastering LLC, be revoked immediately.

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 5 days from the date of that certification.

Done this day, October 11, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Emphasis added. [2] It was suspended for non-renewal beginning October 1, 2010. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [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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