ALJDEC decisions subject to certification as final

2009A-565982-ROC · Registrar of Contractors · 2011-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2011 APPEARANCES: Guadalupe Duarte appeared personally. Rubio General Contractor, L.L.C. was represented by its authorized representative, Manuel Rubio. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Rubio General Contractor, L.L.C. (“Respondent”) is the holder of License No. B-3.242789-R issued by the Registrar of Contractors (“Registrar”). 2. Pursuant to the Notice of Compliance Hearing in Case No. 2009-565982, formerly Y09-0056, issued by the Registrar, the above-entitled matter came on for a compliance hearing before the Office of Administrative Hearings, an independent agency, to determine whether or not Respondent has complied with the terms of the Registrar’s October 19, 2009 Order. 3. The Registrar’s Order in Case No. 2009-565982, formerly Y09-0056, required Respondent, among other things, to hire other appropriately licensed contractors to timely perform the remedial work set forth in the Corrective Work Order issued by the Registrar and to repair damage caused by Respondent as a condition to avoid the suspension of Respondent’s contracting license. 4. The Registrar’s Order did not permit Respondent to perform the required remedial work. 5. The Registrar’s Corrective Work Order was issued to Respondent on September 29, 2008. 6. At the compliance hearing, the Registrar’s assigned inspector, Daryl McCloskey, testified that Corrective Work Order items numbered 1, 2, and 3 have been resolved. 7. However, Inspector McCloskey further testified that Corrective Work Order item number 4, which required that the front patio be completed pursuant to local building code requirements and to workmanlike standards, had not been completed as required. 8. Respondent failed to present any credible evidence to support its contention that the front patio was damaged due to an earthquake and not due to Respondent’s workmanship. Inspector McCloskey testified that the condition of the front patio is not the result of an earthquake, but due to poor workmanship. 9. Respondent failed to present any credible evidence to support its contention that Complainant denied it access to complete the required work. Complainant was entitled to deny access to Respondent and Juan Rubio, who acted as an agent for Respondent, pursuant to the Registrar’s Order. That Order required Respondent to hire other properly licensed contractors to perform the required remedial repairs due to the conflict between the parties. 10. Respondent attempted to re-activate its expired License No. 242788, a Class L-61 license, but that request was rejected by the Registrar due to the pending action in the above-entitled matter. 11. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. B-3.242789 was suspended for non- renewal on April 1, 2010, suspended for lack of bond on March 3, 2010, and expired on March 1, 2011. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Respondent bears the burden of demonstrating by a preponderance of the evidence that Respondent has fully complied with the Registrar’s October 19, 2009 Order. 3. Respondent failed to comply with the Registrar’s Order in Case No. 2009-565982, formerly Y09-0056, by not causing proper remedial repairs to item number 4 of the Corrective Work Order. Since Respondent’s License No. B-3.242789 is expired and suspended, and given the length of time Respondent has been afforded to comply with the Registrar’s Corrective Work Order, the immediate revocation of that license, rather than the provisional suspension of the license, is deemed to be the appropriate discipline to be imposed in this matter. RECOMMENDED ORDER ON COMPLIANCE Respondent’s License No. B-3.242789 shall be immediately revoked in Case No. 2009-565982, formerly Case No. Y09-0056. 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, July 27, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826