ALJDEC decisions subject to certification as final

2009A-1322782-R0C-com · Registrar of Contractors · 2012-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2012, at 8:00 a.m. APPEARANCES: Jose J. Mendoza (hereinafter “Complainant”) appeared on his own behalf. J M Villas Construction LLC (hereinafter “J M Villas”) appeared through its authorized representative, Jose Manual Villasenor. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Final Compliance Hearing are made: FINDINGS OF FACT 1. J M Villas is the holder of License No. B.207789-R issued by the Registrar of Contractors. 2. The Order Setting Final Compliance Hearing provides, in pertinent part, as follows: On November 15, 2011, the Registrar issued a Compliance Hearing Order providing that Respondent’s B.207789-R License be immediately suspended and remain suspended until the Registrar received written proof, and the Registrar accepted such proof, that Respondent had properly repaired Complainant’s rear patio concrete surface by removing the excessive product in a workmanlike manner. On November 17, 2011, the Registrar suspended Respondent’s B.207789-R License in accordance with the November 15, 2011 Compliance Hearing Order. On or about January 9, 2012 and January 10, 2012, Counsel for Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “had the rear patio at [Complainant’s] residence repaired. The repair was completed on Wednesday, November 30, 2011 by Kingdom Construction. [Counsel is] hopeful that upon receipt of this letter a Compliance Inspection will be scheduled . . . .” The Registrar treated this submission as a Request for Compliance Inspection. On January 24, 2012, the Registrar sent a copy of Counsel’s Request for Compliance Inspection to Complainant, providing Complainant an opportunity to file a Response thereto. On or about February 2, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “[t]he work of the contractor left a thick on even (sic) rough layer that looks like sand and cement mixture that is hard to swipe [sic] and clean the patio.” Upon review and consideration, and with good cause appearing, IT IS ORDERED that a FINAL Compliance Hearing be scheduled in the expedited course of docketing in the Yuma area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s November 15, 2011 Order. If it is determined that Respondent failed to comply with the Registrar’s directive, Respondent’s B.207789-R License shall remain suspended, and Complainant shall not be obligated to allow Respondent additional opportunities to perform corrective work. Complainant, instead, will be allowed to file a claim with the Residential Contractors’ Recovery Fund and if deemed eligible, may obtain a payout, which Respondent would be obligated to reimburse if Respondent should want to retain its License or ever obtain another Arizona contracting license. If it is determined that Respondent has fully complied with the terms of the November 15, 2011 Compliance Hearing Order, then the suspension imposed upon Respondent’s License shall be lifted, and this matter closed. IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing. Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it fully complied with the terms of the November 15, 2011 Order.

3. The assigned Agency Inspector, Daryl McCloskey (hereinafter “Inspector McCloskey”) conducted a pre-hearing Compliance Inspection on August 6, 2012 at 9:00 a.m. Inspector McCloskey testified that Complainant’s concrete patio had been corrected and refinished with a broom finish. Inspector McCloskey opined that J M Villas has complied with terms of the November 15, 2011 Order of the Registrar of Contractors.[1] 4. Complainant testified that he has a fairly new house and wants to be happy with his house. Complainant stated that he and his wife are unhappy with the appearance of his concrete patio. Complainant testified that the surface of his concrete patio is showing excessive wear. Complainant asserted that the condition of his concrete patio is terrible and that the concrete patio should be properly corrected or removed and replaced.[2] 5. Jose Manual Villasenor (hereinafter “Mr. Villasenor”) testified that he retained the most experienced contractor in the area to correct Complainant’s patio. Mr. Villasenor stated that a new concrete surface has been applied to Complainant’s concrete patio.[3] 6. Administrative notice is taken of J M Villas’ prior license record as reflected on the Registrar of Contractors’ public website on August 8, 2012. Such prior license record reflects that License No. B.207789-R of J M Villas was suspended by the Registrar of Contractors “[until] compliance” on November 17, 2011, and suspended by the Registrar of Contractors for lack of bond on July 7, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. J M Villas retained an alternative licensed contractor to properly correct Complainant’s concrete patio. The assigned Agency Inspector testified that he conducted an onsite inspection on August 6, 2012, and observed that a new concrete surface had been applied to Complainant’s concrete patio and stated that the terms of the November 15, 2011 Compliance Hearing Order had been fully complied with. This Tribunal concludes that J M Villas has fully complied with the terms of the November 15, 2011 Compliance Hearing Order. RECOMMENDed order In view of the foregoing, it is recommended that the suspension imposed on License No. B.207789-R of J M Villas pursuant to the terms of the November 15, 2011 Compliance Hearing Order be lifted and that this matter be closed. 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 8, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 8/8/12 Hearing Record (hereinafter “H.R.”) at 8:40-10:07. [2] H.R. at 15:57-19:39. [3] H.R. at 24:02-25:58.

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