ALJDEC decisions subject to certification as final

2009A-40334519-ROC · Registrar of Contractors · 2012-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 21, 2012, at 8:00 a.m. APPEARANCES: Complainant Steve Bailey appeared on Complainants Steve and Marcie Bailey and Homestead Boarding Kennels’ behalf; Richard Darrell Bagby dba National Countertops and Cabinets appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. C-30.111213-R for residential finish carpentry and L-60.111219-C for commercial finish carpentry to Richard Darrell Bagby doing business as (“dba”) National Countertops and Cabinets (“Mr. Bagby”). On November 4, 2009, the complaint filed by Steve and Marcie Bailey and Homestead Boarding Kennels (“Complainants”) in Case Nos. 09-4033 and 09- 4033W[1] proceeded to hearing before the undersigned Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“the OAH”), an independent state agency. A lengthy discussion ensued on the record among the ALJ, Complainant Mr. Bailey, Mr. Bagby, and the Registrar’s assigned inspector, Mark Alyea. As a result of the discussion, Mr. Bailey and Mr. Bagby agreed that Complainants would withdraw the complaint if Mr. Bagby agreed to replace all of the cabinet doors with which Complainants remained dissatisfied, even though Inspector Alyea testified that some of the doors met the Registrar’s and industry standards. Mr. Bailey expressed concern about whether the replacement doors would match the existing cabinets. Inspector Alyea stated that Complainants’ complaint did not involve the color of the cabinet doors, nor did the Corrective Work Order require Mr. Bagby to correct the color of the doors. Nonetheless, Mr. Bagby agreed that he would order doors that would match the existing cabinets. The ALJ vacated the remainder of the hearing on the merits and remanded Case Nos. 09-4033 and 09-4033W to the Registrar. The Registrar issued an order closing Case Nos. 09-4033 and 09-4033W, but informed the parties that the Citation and Complaint was subject to being reopened by the parties upon an alleged failure to comply with the terms of the settlement. The Registrar redesignated Case Nos. 09-4033 and 09-4033W as Case Nos. 2009- 40334519 and 2009-[number redacted], respectively. On March 5, 2012, the Registrar issued an Order Reopening Complaint and Setting Compliance Hearing in Case Nos. 2009-40334519 and 2009-[number redacted], in relevant part as follows: On November 27, 2009, the Registrar issued an Order of Closing in this matter in accordance with the Administrative Law Judge’s Order Vacating Hearing Re: Settlement.

On March 26, 2010, Complainants submitted written correspondence in this matter with the Registrar requesting to reopen its case. Complainants maintained that Respondent “failed to fulfill its agreement.”

On June 14, 2010, Respondents submitted a Response to Complainants’ Request to Reopen providing, among other things, that Complainants “refused to allow [the installer] to hang [the doors] because [Complainants] did not think they were a good match.” Respondent maintained it attempted delivery and installation of the doors a second time, but Complainants refused delivery.

In view of the foregoing, and with good cause appearing, IT IS ORDERED THAT Case Nos. 2009-40334519 and 2009-[number redacted] be REOPENED. . . . At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct constituting violations of A.R.S. 32- 1154(A)(7), (15), (23), and (3) as set forth in the Citation and Complaint and/or breached the terms of the parties’ Settlement Agreement.

The Registrar referred Case Nos. 2009-40334519 and 2009-[number redacted] back to the OAH for a compliance hearing. On May 21, 2012, a compliance hearing was held in Case Nos. 2009-40334519 and 2009-[number redacted]. Inspector Alyea testified. Complainant Mr. Bailey testified. Mr. Bagby submitted one exhibit and presented the testimony of two witnesses: (1) himself; and (2) Angel Velarde, his employee who attempted to replace the cabinet doors. Inspector Alyea testified that at the compliance inspection, he observed that none of the doors had been replaced. Inspector Alyea testified that he was informed that Mr. Bailey did not allow Mr. Bagby’s employee to replace the doors. Mr. Bagby testified that he ordered the cabinet doors from the manufacturer. Mr. Bagby further testified that he knew the color to order because he had the same color cabinets on display in his office. After the doors were manufactured, on or about February 10, 2010, Mr. Velarde and another employee went to Complainants’ property to install the doors to comply with the settlement. Mr. Bailey asked to see one of the doors before it was installed. When Mr. Velarde showed him a door, Mr. Bailey told the employees to leave because he did not like the color of the door. Mr. Velarde testified that the color of the replacement doors matched the existing doors within industry standards. Mr. Bailey acknowledged that he did not allow Mr. Bagby’s employees to install the doors to comply with the settlement. He testified that he had been told that there was no way to match the color of the doors to the existing cabinets because in the time since the cabinets were installed, exposure to sunlight had caused them to fade. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Mr. Bagby bears the burden of proof to establish that he complied with or was denied reasonable access to comply with the settlement in Case Nos. 2009-40334519 and 2009-[number redacted] (formerly Case Nos. 09-4033 and 09-4033W) 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] If Mr. Bailey believed that the doors did not match the existing cabinets, his remedy was to allow Mr. Bagby to replace the doors and then request a compliance inspection. Inspector Alyea could then render an opinion on whether the doors that were replaced matched the existing cabinets to industry standards. Mr. Bailey does not have the right to impose his own standards by denying access to Mr. Bagby’s employees to attempt to comply with the terms of the settlement. Mr. Bagby established that he was denied reasonable access to comply with the settlement in Case Nos. 2009-40334519 and 2009-[number redacted] (formerly Case Nos. 09-4033 and 09-4033W). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar close Case Nos. 2009-40334519 and 2009-[number redacted] (formerly Case Nos. 09-4033 and 09-4033W) against License Nos. C-30.111213-R and L-60.111219-C of Richard Darrell Bagby dba National Countertops and Cabinets. 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 12, 2012. /s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] OAH Matter Nos. 09F-4033-ROC and 09F-4033W-ROC. [2] See A.R.S. § 32-1101 et seq. [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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