ALJDEC decisions subject to certification as final

2009A-7319432-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through his attorney, Larry Gee. The Respondent appeared through its authorized representative, Tim Carolan. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms and conditions of the previously entered Decision and Order of the Registrar of Contractors. Evidence and testimony were presented, and the following Findings of Fact, Conclusions of Law and Recommendation on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provides, in pertinent part, as follows: On or about June 30, 2010, Respondent submitted copies of written correspondence it had mailed to Complainant via certified mail requesting that it be allowed to dispatch a crew to Complainant’s residence to perform the requisite corrective work. Under separate cover, Respondent indicated that it had made three (3) attempts to communicate with Complainant to set up a date and time on which Complainant would allow access to Respondent to perform the corrective work, but that Complainant informed Respondent via a voicemail message that it did not want Respondent back on his property. On or about July 1, 2010, Respondent paid the $250.00 civil penalty. On or about July 26, 2010, Complainant filed a Response to Respondent’s June 30, 2010 submissions stating, among other things, that Respondent did not contact Complainant to perform any repairs until late July, well past the Order effective date. Upon review and consideration of the foregoing submission, 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 Tucson area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Complainant unreasonably 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 or denial of access by Complainant. 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 C-14.131358-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 attempts to comply with the Registrar’s 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.

2. Credible testimony and evidence established that the Complainant has filed personal injury claim with the Respondent’s insurance company alleging that the Complainant was injured by a fence post tipping over and landing on the Complainant’s foot. 3. Credible testimony and evidence established that on March 5, 2009, the Respondent issued a letter to the Complainant conditioning the performance of compliance with the terms of the Corrective Work Order issued in this matter upon the Complainant’s providing the Respondent with a signed release of liability from the Complainant’s injury claim. 4. Credible testimony and evidence established that the Complainant refused to comply with the Respondent’s precondition, and no corrective work was performed. 5. Credible testimony and evidence established that between March 2009 and June 2010, there was no contact between the Respondent and the Complainant until the Respondent issued its June 15, 2010 letter requesting access to the Complainant’s residence. 6. There was no dispute that on June 15, 2010, June 29, 2010, and June 30, 2010, the Respondent issued letters to the Complainant expressing the Respondent’s intent to dispatch a crew to the Complainant’s residence in order to comply with the terms of the Corrective Work Order. 7. The Respondent asserts that the Complainant left a voice mail with the Respondent denying access to the Respondent. 8. The Complainant agrees that he left a voice mail denying access to the Respondent because he was too busy on June 24, 2010, to spare time to allow the Respondent access to his property on that date and requested that the Respondent contact him or his attorney. 9. Credible testimony and evidence established that the Respondent did not return the Complainant’s telephone call and instead, sent two more certified letters to the Complainant. 10. Credible testimony and evidence established that the Complainant failed to pick up the two additional certified letters at the post office. 11. Credible testimony and evidence established that the Complainant was not notified that the Respondent was no longer requiring that he relinquish his personal injury claim against the Respondent prior to the performance of any corrective work by the Respondent. 12. Credible testimony and evidence established that the Registrar’s Order of November 19, 2009 does not require the Complainant to provide the Respondent with any type of release for any alleged personal injury claim. 13. The credible evidence of record is insufficient and fails to support a finding that the Complainant unreasonably denied the Respondent access to comply with the Registrar’s Order of November 19, 2009. 14. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the Registrar’s Order of November 19, 2009. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to properly accomplish compliance with the terms the Registrar’s Order of November 19, 2009, over a prolonged period of time and that the Respondent’s efforts appear to have been directed to excuse, rather than to achieve, compliance with the terms of the November 19, 2009 Order of the Registrar. 15. Credible testimony and evidence, presented at hearing, supports a finding that the Respondent has failed to fully comply with the terms of November 19, 2009 Order of the Registrar. CONCLUSIONS OF LAW 1. The Respondent bears the burden of demonstrating by a preponderance of evidence that the Respondent has fully complied with the Registrar’s November 19, 2009 Order or that the Complainant has unreasonably denied the Respondent access to comply with the Registrar’s November 19, 2009 Order. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Credible testimony and evidence presented during the compliance hearing supported findings which establish that the Respondent has not fully complied with the terms of the Registrar’s November 19, 2009 Order. 4. The Respondent failed to sustain its burden to support a finding that the Complainant unreasonably denied the Respondent access to comply with the Registrar’s November 19, 2009 Order. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be placed on suspension until the Registrar receives and accepts written proof that the Respondent has fully complied with the terms of the Registrar’s November 19, 2009 Order. It is further recommended that if the Respondent provides written proof acceptable to the Registrar that it has fully complied with the terms of the Registrar’s November 19, 20009 Order, then the Respondent’s License suspension shall be lifted and that this matter be closed. In the event of certification of this 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 the certification. Done this day, December 22, 2011.

/s/ M. Douglas 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