ALJDEC decisions subject to certification as final

2009A-35028780-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Keith Peterson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent is in compliance with a Default Decision and Order issued by the Registrar of Contractors (“ROC”). That Default Decision and Order required Respondent to satisfy the complaint filed by Complainant and a Corrective Work Order (“CWO”) issued by the ROC. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On December 11, 2009, the ROC issued a Default Decision and Order that gave Respondent 40 days to satisfy the complaint in this matter or have its license suspended. On March 11, 2010, Respondent contacted the ROC claiming that Complainant would not grant access to the property to perform the work. Complainant informed the ROC that he would not allow Complainant to work on his home because of the incredibly poor workmanship exhibited by Respondent. In June 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 Complainant unreasonably denied access to Respondent to perform the necessary corrective work. . . .” 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 Default Order. Complainant presented testimony 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 the evidence does not show Respondent to be in compliance with the Default Order because Complainant’s denial of access was reasonable. FINDINGS OF FACT 1. Respondent is the holder of license B-3.157567-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general remodeling and repair of residential properties. Fernando Arzola is the company’s sole member and Qualifying Party. The license expired on September 1, 2011. 2. The original complaint filed by Complainant in this matter listed the items of poor workmanship and stated that Complainant had fired Respondent in the middle of the project. The CWO also describes very poor workmanship. At hearing, Complainant testified that he caught Fernando Arzola lying to him and hiding poor work while the job was underway. He testified that he felt compelled to fire Respondent before the job was completed due to those actions. 3. Complainant’s evidence is uncontested. 4. The evidence shows that Complainant fired Respondent before the job was completed. That action is not likely to happen unless a contractor’s work or professionalism is extremely poor or unless a homeowner acts in an unreasonable manner. The evidence does not show that Complainant acted unreasonably by firing Respondent and refusing to let Respondent do any further work. The evidence found on default, and the testimony at the compliance hearing, show that Respondent’s work on the job was extremely poor and that Respondent lacked professionalism. These are acceptable reasons to deny a contractor access to property. 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] Here, Complainant admitted that he denied access to Respondent. Therefore, Complainant must show that the denial was reasonable.[3] Complainant has done so. 2. As noted, the evidence shows that Complainant’s denial of access to Respondent for corrective work was reasonable, given the extremely poor workmanship and lack of trustworthiness exhibited by Respondent on the job. The complaint, which was not contested and which was accepted by default, stated that Complainant had fired Respondent during the job for incompetence. The record supports that conclusion. Therefore, it was reasonable for Complainant to deny access to Respondent. 3. There is no evidence that Respondent tried to comply with the CWO by having another contractor do the work or making a monetary settlement with Complainant. Nor did Respondent appear at the hearing and make a defense as to its conduct. Thus, the record supports a conclusion that Respondent is not in compliance with the Default Order. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.157567-R, held by Fernando’s Remodeling, LLC, be revoked for failure to comply with the Default 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).

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