ALJDEC decisions subject to certification as final

2009A-37790895-ROC · Registrar of Contractors · 2012-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 22, 2012, at 8:00 a.m. APPEARANCES: Complainant Randy K. Meinhold did not appear; Respondent Desert Directions, Inc. dba G and S Landscaping was represented by Fidelis V. Garcia, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 21.091312-R for residential landscaping and irrigation systems to Desert Directions, Inc. doing business as (“dba”) G and S Landscaping (“Respondent”). On December 14, 2009, the complaint filed by Randy Meinhold (“Complainant”) in Case No. 09-3779 proceeded to an evidentiary hearing before the undersigned Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“the OAH”), an independent state agency. The ALJ later issued an Administrative Law Judge Decision in Case No. 09- 3779 that concluded that Respondent had not violated A.R.S. § 32- 1154(A)(23) because Complainant denied it reasonable access to comply with the Corrective Work Order. The decision also concluded that Respondent had violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and former A.R.S. § 32-1154(A)(7) in its installation of pavers at Complainant’s house. The ALJ noted that Respondent’s license was suspended by operation of law for non-renewal. As a result, the ALJ recommended in Case No. 09-3779 that the Registrar suspend Respondent’s license until it provided proof that it had renewed its license and corrected the workmanship deficiencies or, if it did not renew its license, it had paid a contractor chosen by Complainant to correct its workmanship deficiencies. On January 15, 2010, the Registrar issued an Order substantially adopting the ALJ’s recommendations. The Registrar advised Complainant in relevant part as follows: [A]ny unreasonable denial of access to the Respondent or the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complainant may be denied access to the Residential Contractors’ Recovery Fund, even if otherwise eligible.

The Registrar’s Order had an effective date of February 24, 2010. The Registrar redesignated Case No. 09-3779 as Case No. 2009-37790895 and issued an Order Denying Extension of Time and Setting Compliance Hearing in Case No. 2009-37790895, in relevant part as follows: On February 24, 2010, Counsel for Respondent submitted written correspondence with the Registrar in this matter seeking to extend the time for Respondent to perform the corrective work called for by the Registrar’s January 15, 2010 Order until March 3, 2010.

On February 25, 2010, Complainant submitted a Response in objection thereto maintaining, among other things, that Respondent has had ample time to perform the corrective work and that Respondent appeared at the jobsite to perform the work while its license was administratively suspended.

On February 26, 2010, Complainant submitted written correspondence with the Registrar requesting that Respondent’s License be immediately suspended. Complainant further provided that it only denied Respondent access to perform the work because Respondent’s license remained administratively suspended.

On March 18, 2010, Counsel for Respondent submitted a Notice of Compliance with January 15, 2010 Order maintaining, among other things, that Respondent has attempted to comply with the Registrar’s Order, but that on numerous occasions, Complainant denied Respondent access to the property to perform the corrective work required by the Order. Counsel for Respondent seeks a declaration that Complainant’s alleged denial of access be treated as Respondent’s compliance with the Order, that the case close without the imposition of discipline against Respondent, and that Complainant be denied access to the Residential Contractors’ Recovery Fund.

On June 2, 2010, Complainant submitted a written Response in objection thereto. Complainant maintains, among other things, that Respondent did not appear to perform the corrective work until the Order’s effective date, Respondent failed to provide the pavers to perform and complete the job, and failed to prove it had a license in good standing with proof of workers’ compensation insurance as the law requires.

In view of the foregoing, and with good cause appearing, IT IS ORDERED that Counsel for Respondent’s [sic] Request for Extension of Time be DENIED. Respondent has had ample time to comply with the Order. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing for the Phoenix 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 January 15, 2010 Order, absent unreasonable interference by Complainant. . . .

(Emphasis in original.) The Registrar referred the matter back to the OAH for a compliance hearing.

On March 26, 2012, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-37790895, setting a compliance hearing on May 22, 2012, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at the address of record that he had provided on his complaint. A compliance hearing was held in Case No. 2009-37790895 on May 22, 2012. Respondent presented the testimony of its secretary/treasurer, Audrey Timmerman, and submitted eleven exhibits. Although the beginning of the compliance hearing was delayed fifteen minutes to allow Complainant additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the compliance hearing be further delayed. Consequently, Complainant did not present any evidence to controvert Respondent’s evidence. Hearing Evidence When Complainant made the complaint, Respondent was winding down its business due to the poor economy and had chosen not to renew its license or to file an annual report with the Arizona Corporation Commission (“the ACC”). On January 20, 2010, Mrs. Timmerman’s father passed away. Due to grief and funeral arrangements, Mrs. Timmerman was out of Respondent’s office until February 1, 2010. Her husband, Respondent’s president and qualifying party, Ed Timmerman, also missed work. Between January 25, 2010, and January 27, 2010, Mr. Timmerman filed a license renewal form for Respondent with the Registrar. On February 3, 2010, the Registrar returned the renewal form because Respondent had not filed its annual report with the ACC. Mrs. Timmerman attempted to file Respondent’s annual report to the ACC. On February 8, 2010, February 11, 2010, and February 15, 2010, Mrs. Timmerman called the ACC to see if the annual report had been processed, but received negative responses. Finally, she was advised to pay a $35.00 fee to expedite ACC’s processing of the annual report. On February 11, 2010, Respondent’s crew delivered the pavers needed to perform repairs and stacked them in the front of Complainant’s house. On February 16, 2010, Mr. Timmerman hand-delivered $35.00 to the ACC to expedite its processing of Respondent’s annual report. Between February 18, 2010, and February 21, 2010, Mrs. Timmerman called the ACC every day to inquire whether it had processed Respondent’s annual report. Finally, on February 22, 2010, the ACC informed Mrs. Timmerman that it had processed Respondent’s annual report and the corporation was in good standing. On February 23, 2010, when the Registrar’s office opened, Mr. Timmerman filed Respondent’s license renewal form. On February 23, 2010, the Registrar renewed Respondent’s license. The Registrar’s employee at the counter informed Mr. Timmerman that Respondent legally could perform work to comply with the Registrar’s Order, but advised him that Complainant should contact the Registrar directly to verify Respondent’s license status because the public website would not be updated until the next day. On February 23, 2010, at 3:46 p.m., Mrs. Timmerman sent a facsimile to Complainant, informing him that Respondent’s crew would be at his house at 8:00 a.m. on the next morning. On February 24, 2010, at 1:36 a.m., Complainant responded, “8:00 a.m. is fine! See you then!” On February 24, 2010, at 6:30 a.m., Complainant sent a facsimile to Respondent, demanding a copy of its workers’ compensation insurance certificate and informing it that according to the Registrar’s public website, Respondent’s license had not been renewed. Mrs. Timmerman testified that the Registrar would not have renewed Respondent’s license if it did not have insurance. Mrs. Timmerman responded to Complainant’s facsimile, assuring him that Respondent’s license had been renewed, that the Registrar would update its website by 12:00 p.m., and that she had requested a certificate of workers’ compensation insurance from Respondent’s insurance agency. On February 24, 2010, at 8:00 a.m., Mr. Timmerman and Respondent’s crew arrived at Complainant’s house to perform the repairs to comply with the Registrar’s Order. Complainant refused to allow Respondent’s crew to enter the property. Later on February 24, 2010, Mrs. Timmerman provided to Complainant Respondent’s workers’ compensation policy number and the telephone number of its insurance agent. On February 25, 2010, at 8:00 a.m., Mr. Timmerman and Respondent’s crew again went to Complainant’s house to attempt to perform repairs to comply with the Registrar’s Order. Complainant refused to allow Respondent’s crew to enter the property until it provided a physical certification of workers’ compensation insurance. Later on February 25, 2010, Mrs. Timmerman sent another facsimile to Complainant, proposing that Respondent perform repairs the next day or the next week, if he preferred. Complainant did not respond to the facsimile. On February 26, 2010, at 8:00 a.m., Mr. Timmerman and Respondent’s crew went to Complainant’s house to perform repairs. Complainant did not answer the door. On February 26, 2010, at 12:04 p.m., Complainant sent a facsimile to Respondent, asking it to describe how the corrective work would be done and to provide physical certificates of Respondent’s workers’ compensation insurance and general liability insurance. Complainant stated that he would allow Respondent to perform repairs on March 2, 2010, at 8:00 a.m. On March 1, 2010, at 10:54 a.m., Complainant sent a facsimile to Respondent, asking for its “game plan” for repairs and physical certificates of workers’ compensation insurance and general liability insurance. On March 1, 2010, Mrs. Timmerman finally obtained certificates of insurance from Respondent’s workers’ compensation and general liability insurance carriers. Mrs. Timmerman sent the certificates to Complainant via facsimile. Mrs. Timmerman also sent a facsimile to Complainant that described the repairs that Respondent intended to perform. In the meantime, because the Registrar’s Order required Respondent to provide proof of compliance on or before February 24, 2010, Respondent’s attorney had requested a brief extension to March 3, 2010. Unbeknownst to Mr. and Mrs. Timmerman, while Complainant was imposing additional conditions to allow Respondent access and implying that once his conditions were met, he would allow access, he had filed an opposition to Respondent’s attorney’s motion for an extension. On March 1, 2010, at 4:00 p.m., Complainant responded to Mrs. Timmerman’s facsimile, accusing her of providing illegitimate certificates of insurance. Complainant stated that he would not allow access to Respondent to perform repairs unless Mrs. Timmerman provided legitimate certificates of insurance. On March 1, 2010, Mrs. Timmerman responded to Complainant’s facsimile, assuring him that the certificates of insurance were genuine. Mrs. Timmerman informed Complainant that if the copies of the certificates were poor, Respondent’s crew would bring original certificates of insurance when Respondent’s crew arrived on March 2, 2010, to complete the repairs that the Registrar’s Order required. On March 1, 2010, at 8:40 p.m., Complainant responded to Mrs. Timmerman’s facsimile, informing her that she needed to try again to provide legitimate certificates of insurance. Complainant also informed Mrs. Timmerman that he had taken the pavers that Respondent’s crew had left at his property into the backyard. Mrs. Timmerman testified that Complainant had paid only a third of the contract price and still owed the remainder. On March 2, 2010, at 8:00 a.m., Mr. Timmerman and Respondent’s crew returned to Complainant’s house to perform repairs with original certificates of insurance. Complainant refused to allow Respondent’s crew to enter his property. On March 2, 2010, at 10:25 a.m., Complainant sent a facsimile to Mrs. Timmerman, describing the alleged deficiencies in the original certificates of insurance that Respondent’s crew had delivered. Mrs. Timmerman testified that on March 18, 2010, she filed a notice of compliance to the Registrar because she did not know what else to do. Complainant never informed Respondent of the name of an appropriately licensed contractor that he wanted to perform the corrective work that the Registrar’s Order required. / / / / / / / / CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Compliance Hearing that the Registrar mailed to Complainant at the address that he provided on his complaint was reasonable and Complainant is deemed to have received notice of the compliance hearing.[2]

Respondent bears the burden of proof to establish that it complied with or was denied reasonable access to comply with the Registrar’s final Order in Case No. 2009-37790895 (formerly Case No. 09-3779) 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 Complainant denied it reasonable access to comply with the Registrar’s final Order in Case No. 2009-37790895 (formerly Case No. 09-3779). 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 Complainant Randy K. Meinhold’s complaint in Case No. 2009-37790895 (formerly Case No. 09-3779) against Respondent Desert Directions, Inc. dba G and S Landscaping’s License No. C-21.091312-R. 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, June 11, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. § 41-1092.04; A.R.S. § 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).

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