ALJDEC decisions subject to certification as final

2009A-4410858-ROC · Registrar of Contractors · 2011-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: November 30, 2011, at 8:15 a.m. APPEARANCES: Complainant Joe Ann Florence did not appear; Respondent Crossfire Construction, Inc. appeared through Troy Stoll, qualifying party and officer, and Marianne Stoll, officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In February 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC229522, Class C-14 for residential fencing to Crossfire Construction, Inc. (“Respondent”). On June 22, 2009, the Registrar received a complaint from Joe Ann Florence (“Complainant”) against Respondent regarding its construction of a cedar fence at her residence located at 22585 North Malapai Ridge Road, Paulden, Arizona. The Registrar designated the complaint as Case No. A09-0441. The Registrar issued a Citation and Complaint in Case No. A09-0441, charging Respondent with violations of A.R.S. § 32-1154(A)(2), former (7), (23), and (3), namely A.A.C. R4-9-108. On February 11, 2010, Complainant’s complaint in Case No. A09-0441 proceeded to hearing before Administrative Law Judge (“ALJ”) Brian Brendan Tully of the Office of Administrative Hearings (“the OAH”), an independent state agency. On or about March 3, 2010, ALJ Tully issued an Administrative Law Judge Decision in Case No. A09-0441 that included the following Findings of Fact: 11. Respondent used a non-galvanized pipe to anchor the end of the fence, which was required to be painted, rather than using galvanized pipe, which was at least twice as expensive and not selected by Complainant. Respondent was not contractually required to paint the pipe. Complainant did not paint the pipe. It is foreseeable that the unpainted pipe would eventually rust. . . . 12. The above-described pipe was anchored two feet below grade by mixing two 60-pound sacks of concrete in the ground. The pipe eventually listed with the fence away from the backyard. There is credible evidence that the pipe and fence did so as the result of the ground around the pipe becoming weathered. . . . . 17. Respondent’s photographic evidence shows a board on the outside of the fence bracing the fence at the location of the above- described pipe anchoring the fence. The testimony of Complainant’s witness, Ross Nickle, further supports this finding. 18. Respondent is found to be responsible for performing remedial repairs to the subject pipe anchoring the fence. Respondent should have foreseen that the installation of the pipe could be impacted by local weather conditions. ALJ Tully concluded in Case No. A09-0441 that Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[1] in its construction of the anchoring for the fence. As a result, ALJ Tully recommended that the Registrar suspend Respondent’s license until it provided proof that it had properly corrected the “pipe anchoring the end of the fence.” ALJ Tully recommended further that if Respondent submitted proof that was satisfactory to the Registrar that it had corrected the pipe on or before the effective date of the final Order, the Registrar not suspend Respondent’s license but, instead, close Case No. A09-0441. On April 8, 2010, the Director of the OAH certified ALJ Tully’s Administrative Law Judge Decision in Case No. A09-0441 as final. Subsequently, the parties submitted conflicting information to the Registrar regarding Respondent’s compliance with the Certification in Case No. A09-0441. The Registrar redesignated Case No. A09-0441 as Case No. 2009-4410858. On September 28, 2011, the Registrar issued an Order Setting Compliance Hearing in Case No. 2009-4410858, in relevant part as follows: On or about May 6, 2010, Respondent submitted written correspondence with the Registrar maintaining, among other things, that “[Respondent] [has] completed the described repair as requested by the [Registrar].” On June 1, 2010, the Registrar sent Complainant a copy of Respondent’s Notice of Compliance providing Complainant an opportunity to file a Response thereto. On or about June 9, 2010, Complainant submitted written correspondence with the Registrar maintaining, among other things, that [she] was not satisfied with the corrective work performed by Respondent. . . . . Upon review and consideration of Respondent’s Notice of Compliance, Complainant[’]s Response, 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 Flagstaff area. At the Compliance Hearing, the parties[] may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of [the OAH’s] Certification issued in this matter. If it is determined that Respondent has failed to fully comply with the terms of the Certification, absent unreasonable interference or denial of access by Complainant, then Respondent’s C-14.229522-R 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 Certification, then Respondent’s license shall not be disciplined and the matter shall be closed as Respondent having fully complied with the terms of the Certification. 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. Note: Normal “wear and tear” will not be considered deficient workmanship on the part of Respondent. The repairs were allegedly performed in May 2010, and any inspection shall take into account normal “wear and tear.” Further, Complainant is precluded from raising any new issues at the Compliance Hearing. Thus, the Compliance Hearing shall be limited to correction of the “pipe anchoring the end of the fence.” (Emphasis in original.) The Registrar referred the matter back to the OAH for a compliance hearing.

On October 3, 2011, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-4410858, setting a videoconference compliance hearing on November 30, 2011, at 8:15 a.m. at the Registrar’s Flagstaff office. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at her address of record, which was her residence where Respondent had constructed the fence. On October 18, 2011, Complainant sent a facsimile to the Registrar, in relevant part as follows: As far as I am concerned your entire team with the exception of the wonderful man that tried to help me [sic]. He knew my fence was a big mess! You stuck with “your” guy that pays you. I’d never worry about a “licensed” person ever again. You’ll defend him no matter what and so many people know this now!! Calif would have taken his license. Leave me alone. I’m not wasting my time with you jerks! (Emphasis in original.) Complainant did not submit a request to withdraw her complaint to the OAH or to the Registrar. A videoconference compliance hearing was held in Case No. 2009-4410858 on November 30, 2011. The Registrar’s inspector, Cliff Frandsen, testified telephonically. Respondent’s officer, Marianne Stoll, testified. Although the beginning of the compliance hearing was delayed fifteen minutes to allow Complainant additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to controvert Respondent’s evidence of compliance. Mrs. Stoll testified that after ALJ Tully’s Administrative Law Judge Decision was certified, she sent notice to Complainant that Respondent would repair the fence on May 5, 2010. Mrs. Stoll testified that although Complainant was not present, Respondent fully repaired the fence on May 5, 2010. Inspector Frandsen testified that he attempted to perform a prehearing compliance inspection on Monday, November 28, 2011. Inspector Frandsen testified that although he sent a letter to the parties notifying them of the scheduled inspection, only Respondent appeared for the inspection. Inspector Frandsen testified that the gate to Complainant’s property was locked. Inspector Frandsen testified that when he walked around Complainant’s property, he saw her vehicle and that the windows of her house were open, but that he could not see the fence. Inspector Frandsen testified that he called Complainant, but she did not answer her telephone. Inspector Frandsen testified that after a half hour, he left Complainant’s property without performing a compliance inspection. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The Notice of Compliance Hearing that the Registrar mailed to Complainant at the address that she provided on her complaint was reasonable and it appears that she actually received notice of the compliance hearing.[3] Respondent bears the burden of proof to establish that it complied with or was denied reasonable access to comply with the final Order in Case No. 2009-4410858 (formerly Case No. A09-0441) by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Respondent established that it complied with the Certification in Case No. 2009-4410858 (formerly Case No. A09-0441). 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. 2009-4410858 (formerly Case No. A09-0441) against Respondent Crossfire Construction, Inc.’s License No. C-14.229522-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, December 12, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] See 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.A.C. R2-19-119(B)(3); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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