ALJDEC decisions subject to certification as final

2009A-62810707-ROC · Registrar of Contractors · 2012-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2012

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Member Thomas Steiner.

WITNESSES: Mary Meyers Randy Meyers Thomas Steiner

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent has complied with a Default Decision and Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Default Decision and Order required Respondent to perform corrective work as described in a complaint filed by Complainants and a Corrective Work Order (“CWO”) issued by the Registrar. Respondent alleges that it attempted to comply but was not allowed reasonable access to perform the required corrective work. Complainants deny the allegation. This tribunal entered the full complaint file received from the Registrar into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Default Decision and Order. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding Respondent to be in compliance and recommending closing the case and lifting the suspension. Procedural Background On October 4, 2010, the Registrar issued a Default Decision and Order that gave Respondent until November 13, 2010, to perform corrective work or have its license suspended until Respondent shows that it is in compliance with the Default Decision and Order. After the Default Decision and Order was issued, and the ROC denied a rehearing request on April 19, 2011, the Registrar suspended Respondent’s license on July 22, 2011, in accordance with the terms of the Default Decision and Order, until Respondent showed compliance with it. On November 29, 2011, Respondent filed a written statement with the Registrar stating that Complainants were not responding to requests for access and that the property had been abandoned by Complainants and foreclosed upon. Respondent requested closure of the case. Complainants responded on January 24, 2012, stating that access was never denied to Respondent. The Registrar then issued an order setting the matter for compliance hearing. The Registrar’s Order Setting Compliance Hearing states that the hearing is to determine “whether or not Complainants have denied Respondent access to comply with the Registrar’s directives or whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference on the part of Complainants.” FINDINGS OF FACT 1. Respondent is the holder of License No: C-5.246645-R, a limited specialty contracting license issued by the Registrar. The license authorizes Respondent to install pavers. James Lawrence Striegel is Respondent’s Qualifying Party. 2. In June 2009, Complainants filed their complaint in this matter. 3. On June 26, 2009, ROC Inspector Scott Deering issued a CWO in this case that stated his findings upon inspection of the workmanship items in the complaint. That CWO ordered Respondent to correct six items. Items and 3 concerned work that was outside the scope of Respondent’s license and Respondent was ordered to use properly licensed contractors to correct them.[1] Item 2 found that the work had been abandoned and contained a directive to complete the project.[2] Item 4 was within Respondent’s scope of work. Item 5 ordered a refund of $29.00 to Complainants as agreed by Respondent at the jobsite inspection. Item 6 required replacement of a wheelbarrow owned by Complainants. These last two items did not require access to the property. 4. Respondent defaulted by failing to timely answer a Citation and Complaint issued by the Registrar on August 17, 2010. The Default Decision and Order in this case found Respondent in violation of “the provisions of A.R.S. § 32-1154 as charged in the Citation and Complaint.” Therefore, the Registrar ordered Respondent to “appropriately rectif[y] the corrective work involved and detailed in the Complaint and the agency’s written directive.” 5. The only written directive in this case is the CWO, which lists the items complained about in Complainants’ complaint. Therefore, Respondent was required to address and correct the CWO items. If Respondent did not comply before May 29, 2011,suspension would be imposed until compliance was shown. As noted, that suspension began on July 22, 2011. 6. Respondent’s representative, LLC Member Thomas Steiner, testified at the compliance hearing on behalf of Respondent. He testified that he had trouble finding a general contractor to perform several of the items in the CWO that required a properly licensed contractor. He testified that in October 2011 he finally found one willing to take on the work. The record contains a copy of a certified letter sent to Complainants by Respondent telling them that Carefree Home Care Plus (ROC License No. B.261990-R) would be doing the work and contracting directly with them, with Respondent paying for all work. Respondent then offered to meet to discuss scheduling and details. Respondent also gave four dates that someone from Respondent could meet with Complainants. Finally, the letter stated that Respondent had procured a new wheelbarrow and would deliver it at Complainants’ convenience. According to the certified mail receipt, Complainants received the letter on October 21, 2011.[3] 7. The evidence shows that Complainants’ home went through foreclosure, which became final on October 6, 2011. Complainants testified that they were still living at the location in October 2011, but were in the process of moving out. 8. Complainants did not respond to the letter. Respondent sent another certified letter on November 14, 2011, requesting a response from Complainants. There is no evidence of receipt of that letter. When Mr. Steiner went to the property shortly thereafter, he found it to be vacant. Respondent then requested closure of the case. 9. The evidence does not show that Complainants responded to the certified letters sent to them in October 2011. Mary Meyers testified that Complainants were not interested in having Respondent do any more work. This is verified by the January 22, 2012, letter Complainants sent to the ROC stating that they have not denied access but also that they want a refund of their deposit on the contract with Respondent. 10. The evidence shows that Complainants did not deny access, but also that Respondent made reasonable efforts in October 2011 to get access to the property to perform the work. Because of the foreclosure, corrective work was no longer appropriate through Complainants, who no longer owned the property. 11. Because Complainants did not respond, Respondent’s attempt to replace the wheelbarrow was unfulfilled. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Since the Default Decision and Order required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the Default Decision and Order.[6] Respondent has met that burden. 2. Complainant was ordered to comply with the CWO in the Order Denying Request for Rehearing issued on April 19, 2011. That order gave Respondent until May 29, 2011, to comply in order to avoid suspension of its license. Respondent did not do so and suspension was imposed until Respondent has shown compliance with the Default Decision and Order. 3. In October 2001, Respondent made reasonable efforts to comply but Complainants were no longer in a position to legally provide access. Because Respondent had acquired a properly licensed contractor to do the work, the Administrative Law Judge concludes that if Respondent had been given access, compliance would have followed. Therefore, Respondent has shown compliance. 4. The Administrative Law Judge concludes that the appropriate outcome is closure of the case. RECOMMENDED ORDER IT IS RECOMMENDED that the suspension of License No: C-5.246645-R held by AZ Pavers LLC be lifted and this matter (Case No. 2009-62810707 formerly 09-6281) be closed.

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, August 14, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This was the basis for a citation to A.R.S. § 32-1154(A)(17). [2] This was the basis for a citation to A.R.S. § 32-1154(A)(1). [3] Complainant Mary Meyers verified receipt. [4] Arizona Administrative Code (A.A.C.) R2-19-119(B). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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