ALJDEC decisions subject to certification as final

2009A-2453007-ROC · Registrar of Contractors · 2011-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 2011

APPEARANCES: Complainants appeared and were represented by attorney Kyle Israel, Israel & Garrity PLLC; Respondent was represented by its Managing Member and Qualifying Party Dahl Willis and Member Shelley Willis.

WITNESSES: Dahl Willis Shelley Willis Jaci May

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a compliance hearing to determine whether Respondent is in compliance with a Decision and Order issued by the Registrar of Contractors. That Decision and Order (“D & O”) required Respondent to perform corrective work. Respondent claims that it is in compliance with the D & O. Procedural Background On December 4, 2009, the Registrar of Contractors (“ROC”) issued a D & O finding Respondent in violation of the contracting statutes by default for failing to file a timely answer to a properly issued Citation and Complaint. The D & O gave Respondent until January13, 2010, to perform the corrective work laid out in two Corrective Work Orders (“CWOs”) or have its license suspended. Thereafter, Respondent filed a rehearing motion that was denied on May 28, 2010. The Order Denying Request for Rehearing stated that it would become effective on July 7, 2010, unless Respondent secured a stay from the courts. On July 1, 2010, Respondent filed another rehearing motion, claiming that the underlying CWO items had been corrected before December 2009. Complainants responded by letter on July 7, 2010, stating that Respondent had not performed any work in 2010. On April 26, 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that at the compliance hearing the parties are to present evidence as to whether or not Respondent has complied with the D & O: If Respondent failed to fully comply with the terms and conditions of the Registrar’s December 4, 2009 Order, absent an unreasonable denial of access on the part of Complainants, Respondent’s KB-2.222083-D License shall be subject to immediate imposition of discipline. If it is found that Complainants unreasonably interfered with Respondent, Respondent’s agents or Respondent’s employees’ attempts to perform the required corrective work, such shall be treated as compliance by Respondent and will result in this case being closed without discipline.

This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Order. In addition, the parties submitted Exhibits C-1 through C-13 from Complainants and R1 through R4 from Respondent. They also presented testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent is not in compliance and recommending immediate suspension of the license until compliance is achieved.

FINDINGS OF FACT 1. Respondent is the holder of license KB-2.222083-D, a dual residential and small business general contracting license issued by the ROC. Dahl Willis is Respondent’s Qualifying Party. The license has not been suspended in this matter.[1] 2. Complainants testified at the compliance hearing that Respondent did not perform any work at the house after the December 2009 D & O was issued. 3. Dahl Willis confirmed that Respondent did not do any work after December 2009. He testified that no work was needed because it had been done earlier in 2009, before the D & O was issued. He also testified that Complainants did not contact Respondent to request that any further work be done after the D & O was issued. 4. The December 4, 2009, D & O requires that Respondent “file with this Agency written confirmation that Respondent has properly complied with the requirements of this Order . . . .” After the ROC issued the denial of the rehearing motion, the date by which Respondent was to show compliance was July 7, 2010. 5. Respondent did not show compliance with the D & O by July 7, 2010, or anytime thereafter. However, Respondent’s license was not suspended. 6. There is no evidence that Complainants limited access to the property or interfered at all with Respondent’s ability to perform corrections. 7. Because Respondent has made no attempt to comply, the evidence shows non-compliance with the December 4, 2009, D & O. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has failed to comply with the D & O.[4] Complainants have met that burden. 2. Under the provisions of the December 4, 2009, D & O, Respondent was to provide written proof that Respondent had properly corrected the complaint items that were validated in two CWOs issued by the ROC dated February 26, 2009, and April 6, 2009. After a rehearing motion was filed and denied, Respondent was given until July 7, 2010 to provide such written proof. Respondent did not do so. Respondent took no remedial action after the D & O was issued. Dahl Willis, Respondent’s qualifying party, testified that he was waiting for Complainants to contact him. However, the D & O puts the burden on Respondent to pursue compliance or face suspension of its license. 3. Respondent did not comply with the D & O. RECOMMENDED ORDER IT IS RECOMMENDED that license KB-2.222083-D, held by Dahl Willis Construction LLC dba Construction Restoration Services, be suspended immediately until the Registrar receives written proof that Respondent has complied with the December 9, 2009, D & O (which incorporates the underlying CWOs) and the Registrar of Contractors accepts such written proof.

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, August 17, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A brief administrative suspension (six days) occurred in June 2010 for lack of bond. [2] Arizona Administrative Code (A.A.C.) R2-19-119(B). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] 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