ALJDEC decisions subject to certification as final

2009A-44032646-ROC-com · Registrar of Contractors · 2011-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: September 29, 2011, at 8:00 a.m. APPEARANCES: Complainant Ralph Niess did not appear; Respondent James Alexander Dowling, Jr. dba Epic Stone and Tile appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In July 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC176923, Class K-48 for dual ceramic, plastic, and metal tile to James Alexander Dowling, Jr. doing business as (“dba”) Epic Stone and Tile (“Respondent”). On or about February 11, 2009, the Registrar received a complaint from Ralph Niess (“Complainant”) about tile that Respondent installed in Complainant’s residence at 5508 West Melinda Lane in Glendale, Arizona 85308-6251. Complainant provided his residence’s address as his mailing address. The Registrar designated Complainant’s complaint as Case No. 2009- 44032646. The Registrar’s inspector, Jim Hennessy, performed a jobsite inspection in Case No. 2009-44032646. On March 24, 2009, Inspector Hennessy issued a Corrective Work Order (“CWO”) to Respondent, requiring him within fifteen calendar days to correct by appropriate means certain tile and grout installations at Complainant’s residence. The Registrar referred Case No. 2009-44032646 to the Office of Administrative Hearings (“the OAH”), an independent state agency for an evidentiary hearing. On May 27, 2010, a hearing was held in the OAH. Based on the evidence that the parties presented, the Administrative Law Judge (“ALJ”) recommended that the Registrar assess a civil penalty and suspend Respondent’s license until he provided proof either that he had complied with the CWO or that Complainant had denied reasonable access for such compliance. The Registrar adopted the ALJ’s recommended decision. The parties subsequently submitted conflicting claims to the Registrar. On July 20, 2011, the Registrar issued an Order Setting Compliance Hearing, providing in relevant part as follows: On July 8, 2010, the Registrar issued an Order in this matter providing that Respondent’s K-48.176923-D License would be suspended on the effective date of the Order until Respondent provided the Registrar with written proof that it had fully complied with the terms and conditions of the written [CWO] issued in this matter. If prior to the effective date of the Order, Respondent submitted written proof that it performed all of the necessary corrective work set forth in the [CWO] in a professional and workmanlike manner or that Complainant refused Respondent reasonable access to comply with the terms of the Order, then no suspension would be imposed. The Order had and [sic] effective date of August 17, 2010. The Order further provided that Respondent pay to the Registrar a civil penalty in the amount of $250.00 on or before the expiration of thirty (30) days from the effective date of the Order or risk the revocation of its License.

On or about July 29, 2010, Complainant submitted written correspondence with the Registrar maintaining, among other things, that the work was not complete. On or about August 23, 2010, Complainant submitted additional correspondence with the Registrar maintaining, among other things, that “[Respondent’s work] is far from complete certainly less than 50 percent.” Complainant also maintains that Respondent caused further damage to additional floor tiles while performing repairs.

On or about September 16, 2010, Respondent submitted written correspondence with the Registrar maintaining, among other things, that “[Complainant] has denied [Respondent] reasonable access to the property to make necessary corrective work.” Respondent further submitted payment to the Registrar in the amount of $250.00 for payment [of] the civil penalty in accordance with the terms of the Registrar’s July 8, 2010 Order.

On or about May 9, 2011, Complainant submitted written correspondence with the Registrar requesting “a compliance inspection to discuss workmanship issues and uncompleted work performed by [Respondent].”

Upon review and consideration of [the] parties’ submissions as referenced above, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties’ [sic] may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of the Registrar’s July 8, 2010 Order issued in this matter. If it is determined that Respondent has failed to fully comply with the Registrar’s written directives, absent unreasonable interference or denial of access by Complainant, then Respondent’s K-48.176923-D License shall be subject to the immediate imposition of discipline. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives in their attempt to comply with the Registrar’s July 8, 2010 Order, then Respondent’s license shall not be disciplined and the matter shall be closed as Respondent having fully complied with the terms of the Registrar’s Order.

A Notice of Compliance Hearing shall be issued in due course.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing, an assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

(Emphasis in original.) The Registrar referred the matter back to the OAH for an evidentiary hearing on whether Respondent complied with the Registrar’s final Decision and Order in Case No. 2009-44032646, or whether Complainant had denied reasonable access for Respondent to do so. On August 4, 2011, the Registrar issued a Notice of Compliance Hearing setting a compliance hearing on September 19, 2011, at 8:00 a.m. at the OAH. The Registrar sent a copy of the Notice of Compliance Hearing to Complainant at the address on his complaint. Subsequently, both parties requested that the Compliance Hearing be continued to allow Respondent additional time to complete repairs to Complainant’s satisfaction. On September 16, 2011, the ALJ issued an order continuing the Compliance Hearing to September 29, 2011, at 8:00 a.m. The OAH mailed a copy of the order to Complainant at the address on his complaint. On September 29, 2011, a compliance hearing was held. Respondent testified on his own behalf. Complainant did not request to appear telephonically at the continued Compliance Hearing. Although the start of the duly noticed continued 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 that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to controvert Respondent’s evidence of compliance. Respondent testified that he made all the repairs that the CWO required to Complainant’s satisfaction and otherwise fully complied with the Registrar’s final Decision and Order in Case No. 2009-44032646. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] The Notice of Compliance Hearing that the Registrar mailed to Complainant and the order continuing the hearing that the OAH sent to Complainant at the address on his complaint were reasonable, and Complainant is deemed to have received notice of the continued Compliance Hearing.[2] Respondent bears the burden of proof to establish by a preponderance of the evidence that he either complied with the Registrar’s final Decision and Order in Case No. 2009-44032646 or that Complainant failed to provide reasonable access for Respondent to do so.[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 he fully complied with the Registrar’s final Decision and Order in Case No. 2009-44032646. 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. 2009-44032646 against Respondent James Alexander Dowling, Jr. dba Epic Stone and Tile’s License No. ROC176923. 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 forty days from the date of that certification. Done this day, October 18, 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)(2); 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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