ALJDEC decisions subject to certification as final

2009A-9785441-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through its authorized representative, James McMahon. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms of the Registrar’s October 26, 2010 Order or whether the Respondent or the Respondent’s representatives have been unreasonably interfered with or denied reasonable access. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provides, in pertinent part, as follows: 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 Tucson 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 Registrar’s October 26, 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-36.204409-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 October 26th 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. Note: Normal “wear and tear” will not be considered deficient workmanship on the part of Respondent. The repairs were allegedly performed in September of 2010, and any inspection shall take into account normal “wear and tear.” Further, Complainant is precluded from raising at the Compliance Hearing any issues unrelated to the repair work that Respondent performed.

2. Credible testimony and evidence established that the stucco cracking on the residence at issue has been repaired by the Respondent to within applicable workmanship and industry standards, but not painted or fogged. 3. Credible testimony and evidence established that the stucco repairs performed by the Respondent would necessarily require fogging or painting in order to comply with applicable workmanship and industry standards. 4. Credible testimony and evidence established that the Respondent retained a properly licensed painting contractor to perform the required fogging work on the residence at issue after the Respondent completed the required stucco crack repairs. 5. Credible testimony and evidence established that as the properly licensed painting contractor was setting up its equipment to perform the fogging work, the owner of the residence at issue informed the painting contractor that the painting contractor was not to proceed with the fogging work and directed the painting contractor to leave the property at issue. 6. The actions of the owner of the residence, in stopping the Respondent’s painting contractor from fogging the residence and excluding the painting subcontractor from the construction site, are found to constitute an unreasonable denial of access in this matter. 7. Credible testimony and evidence presented at hearing established that the Respondent’s representative was unreasonably denied access to the residence at issue in its attempt to fully comply with the terms of the Registrar’s October 26, 2010 Order. CONCLUSIONS OF LAW 1. The Respondent bears the burden of demonstrating by a preponderance of evidence that the Respondent has fully complied with the terms of the Registrar’s October 26, 2010 Order or that the Respondent or his representatives have been unreasonably interfered with or that there has been an unreasonable denial of access to the Respondent or the Respondent’s representatives. 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. The Respondent sustained his burden of proof by a preponderance of relevant, substantial and probative evidence that the Respondent’s painting contractor was denied reasonable access to perform fogging work necessary to fully comply with the terms of the Registrar’s October 26, 2010 Order. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License not be disciplined and that this matter be closed as the Respondent having fully complied with the terms of the Registrar’s October 26, 2010 Order. 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