ALJDEC decisions subject to certification as final

2009A-2879259-ROC · Registrar of Contractors · 2011-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: February 16, 2011, at 8:00 a.m. APPEARANCES: Complainant Monument Homes, Inc. did not appear; Respondent K and A Best Fabrication, L.L.C. appeared through Amy Liszewski, its part-owner. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In October 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC104570, Class B for residential general contracting to H A Developers Monument Homes, doing business as (“dba”) Monument Homes (“Complainant”). Complainant’s address of record is 14848 North Cave Creek Road, Suite 13, Phoenix, Arizona 85032-4954. In July 2007, the Registrar issued License No. ROC234697, Class K-17 for dual steel and aluminum erection to K and A Best Fabrication, L.L.C. (“Respondent”). Complainant subcontracted to Respondent certain work on a residential structure that Complainant was building as the general contractor. A dispute arose between the parties, and Complainant made a complaint to the Registrar, designated as Case No. 09-0287. Complainant’s complaint against Respondent in Case No. 09-0287 was referred to the Office of Administrative Hearings (“the OAH”), an independent agency, and proceeded to an evidentiary hearing before Administrative Law Judge (“ALJ”) Robert I. Worth on August 20, 2009. On or about September 8, 2009, ALJ Worth issued a decision in Case No. 09- 0287. ALJ Worth found that Respondent had violated A.R.S. § 32-1154(A)(2), former (7), (23), and (3) (namely A.A.C. R4-9-108), and recommended that as a consequence of the violations, the Registrar issue an order conditionally suspending and imposing other penalties on Respondent’s license. On September 29, 2009, the Registrar substantially accepted ALJ Worth’s recommended decision in Case No. 09-0287 and issued a final Decision and Order in Case No. 09-0287. On November 19, 2010, the Registrar issued an order, redesignating Case No. 09-0287 as Case No. 2009A-2879259, and referring the matter back to the OAH for a compliance hearing to be scheduled in the expedited course of docketing, for the following reasons: On September 29, 2009, the Registrar issued an Order in this matter providing that Respondent’s Class K-17 License No. 234697 would be suspended on the effective date of the Order until Respondent provided the Registrar with written proof that it caused delivery of a copy of stamped engineer-approved drawings to Complainant’s offices for the contractually agreed steel work, has accomplished appropriate remedial work on the steel beam above the garage after first obtaining and communicating to Complainant proper advance engineering approvals of the proposed methods by which the beam corrections will be performed, has confirmed to Complainant in writing the issuance of a monetary credit in the amount of $4,797.00, and has either properly repaired the damaged masonry block column or confirmed to Complainant in writing a further credit amount of $400.00. The Order further provided that Respondent pay the Registrar a civil penalty in the amount of $350.00 on or before the expiration of thirty (30) days after the effective date. If Respondent provided such proof on or before the effective date of the Order, then its Class K-17 License No. 234697 would be placed on disciplinary probation for a period of 45 days. The effective date of the Order was November 8, 2009.

On or about November 5, 2009, Respondent submitted written correspondence with the Registrar maintaining that it has fully complied with the terms set forth in the Registrar’s September 29, 2009 Order.

On or about November 24, 2009, Complainant submitted written correspondence with the Registrar maintaining that “as of this date the Respondent has not completed all items necessary for compliance.”

On December 1, 2010, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-2879259, setting a compliance hearing on February 16, 2011, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at its address of record. A compliance hearing was held in Case No. 2009-2879259 on February 16, 2011. The Registrar’s inspector, Mark Alyea, testified. Respondent’s part- owner, Amy Liszewski, testified. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Complainant additional travel time, it did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Complainant did not present any evidence to prosecute its complaint against Respondent. Inspector Alyea testified that he understood from the prehearing inspection that the residential property where Respondent had performed the work was being foreclosed on and going to a short sale. Inspector Alyea testified that he understood that Respondent was willing to give up the engineer-approved drawings that the Registrar’s final Decision and Order in Case No. 09-0287 required. Mrs. Liszewski testified that Respondent had paid the civil penalty, provided the engineer-approved drawings to Complainant, and issued the monetary credit to Complainant that the Registrar’s final Decision and Order in Case No. 09-0287 had required. Mrs. Liszewski testified that the homeowner had fired Complainant from the project at issue, and refused to allow access to Respondent to perform any further work on the project. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Compliance Hearing that the Registrar mailed to Complainant at its address of record was reasonable, Complainant is deemed to have received the Notice of Compliance Hearing.[2] Respondent bears the burden of proof and must establish that it complied or was denied reasonable access to comply with the Registrar’s final Decision and Order in Case No. 09-0287 by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Respondent established that it either complied or was denied reasonable access to comply with all the provisions of the Registrar’s final Decision and Order in Case No. 09-0287. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Case No. 2009-2879259 (formerly 09-0287) against Respondent K and A Best Fabrication, L.L.C.’s License No. ROC234697, Class K-17. 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, March 3, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.A.C. R2-19-119(B)(3); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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

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