ALJDEC decisions subject to certification as final

2010A-2340006-ROC · Registrar of Contractors · 2010-05-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2010 at 10:00 a.m. APPEARANCES: Complainant Marcia Renaud appeared on her own behalf; Respondent Betsy Jean Enterprises Inc. dba Concrete Texturing did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On January 18, 2006, the Registrar of Contractors (“the Registrar”) issued License No. ROC214543, Class K-5 to Respondent Betsy Jean Enterprises Inc. dba Concrete Texturing, a corporation. Respondent’s address of record is 5003 E. 29th St., Tucson, AZ 85711-6443. On November 2, 2009, the Registrar received a complaint from Complainant Marcia Renaud against Respondent’s license. According to the complaint, Respondent had installed concrete texturing on the front and back porches at Complainant’s residence at 2002 S. Darling Ave. in Tucson. According to Complainant, the concrete texturing had cracked and Respondent had failed to honor its warranty. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector Greg Koeneman performed a jobsite inspection and, on November 17, 2009, issued a Corrective Work Order (“CWO”) to Respondent, directing it within fifteen days to address certain workmanship deficiencies by appropriate means, as follows: 1. Complaint: “Cracks in textured concrete are telegraphing from cracks in slab below.” Cracks were present prior to the application of the texture. According to the complainant they were cause[d] by roots from a tree that was removed before the texture was done. 2. a. The cracking at the front porch is within R.O.C. tolerances and not within the inspector’s jurisdiction to direct a repair. No action required. b. The cracks in the rear porch are at or less than the 1/16” tolerance, but there appears to be a lack of adhesion at the site of the cracking. Contractor to correct by appropriate means.

On December 9, 2009, the Registrar received Complainant’s request for hearing. On January 7, 2010, Respondent voluntarily canceled its license. On February 2, 2010, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(1), (23), and (3) (namely A.A.C. R4-9-108). The Citation and Complaint was sent to Respondent at its address of record. On February 8, 2010, the Registrar received Respondent’s written answer to the Citation and Complaint, which admitted that the workmanship on the concrete texture was poor, but stated that Respondent could not perform necessary repairs because it had gone out of business. Respondent’s written answer did not provide any different address. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. On April 13, 2010, the Registrar issued a Notice of Hearing, setting a hearing on May 14, 2010 at 10:00 a.m. at the Office of Administrative Hearings. The Registrar sent a copy of the Notice of Hearing to Respondent at 4819 Park Vale Dr. in West Jordan, Utah 84081-3633. The source of that address does not appear in the record. A hearing was held on May 14, 2010. Complainant appeared and testified. Inspector Koeneman also testified telephonically. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear through a duly authorized officer or attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the start of the hearing be further delayed, and did not present any evidence to defend its license. As of the date of the hearing, Respondent had not reinstated its license. Hearing Evidence Inspector Koeneman testified that no representative of Respondent attended the first jobsite inspection on November 16, 2009. Inspector Koeneman testified that the letter setting the jobsite inspection had been returned with a note stating that Respondent had closed its business. Inspector Koeneman testified consistently with his November 17, 2009 CWO. Inspector Koeneman testified that he had performed a prehearing jobsite inspection on May 12, 2010. The condition of the front porch was the same; the hairline cracks appeared to be stable. Inspector Koeneman testified that the back porch had not been repaired. The condition of the concrete texture on the back porch appeared to have worsened. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[1] The record in this matter does not allow an inference to be drawn about whether Respondent should be deemed to have received the Notice of Hearing in this matter.[2] However, in light of the admissions in Respondent’s written answer to the Citation and Complaint, Respondent may have waived its right to contest Complainant’s evidence of statutory violations. In any event, the issue of whether Respondent received the requisite notice of the hearing may be addressed if it requests rehearing on that basis. Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] The cancelled status of Respondent’s license does not preclude Complainant from pursuing her administrative remedy nor preclude the Registrar from conducting these disciplinary proceedings.[6] If Respondent fails to comply with any condition that the Registrar sees fit to include in its final Decision and Order in this matter, Respondent’s cancelled license will be revoked. If the Registrar accepts this recommendation and, as a result of Respondent’s failure to comply with the Registrar’s final decision in this matter, the Registrar revokes Respondent’s license, in due course the revocation will lead to revocation of any other license on which Respondent or the other persons listed on its license may be also listed[7] and may prevent any new license from being issued.[8] Respondent’s cancelled license presently prevents it from performing or hiring another licensed contractor to perform any further corrective action in this matter.[9] Complainant has established that Respondent violated A.R.S. § 32- 1154(A)(1),[10] (23),[11] and (3)[12] by failing to install the concrete texture on Complainant’s back porch in a professional and workmanlike manner and by failing to make any attempt to repair that concrete texture after the CWO was issued. RECOMMENDED ORDER In view of the foregoing, it is recommended that, on the effective date of the Registrar’s order in this matter, the Registrar should revoke Respondent Betsy Jean Enterprises Inc. dba Concrete Texturing’s License No. ROC214543, Class K-5 unless the Registrar receives proof in writing from Respondent that it has paid Complainant Marcia Renaud sufficient monies to allow her to hire an appropriately licensed contractor to correct the concrete texture on her back porch. It is further recommended that if, on or before the effective date of the order, the Registrar receives proof in writing from the Respondent that it has paid Complainant sufficient monies to allow her to hire an appropriately licensed contractor to correct the concrete texture on her back porch, the Registrar should not revoke Respondent’s license but, instead, should close Case No. 2010-2340006. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, May 14, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] A.R.S. §§ 41-1092.04; 41-1092.05(D) require the agency to provide reasonable notice to licensees of hearings.

[3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.R.S. § 32-1154(C). [7] See A.R.S. § 32-1154(A)(21). [8] See A.R.S. § 32-1122(E). [9] See A.R.S. § 32-1101(A)(7) (defining “residential contractor” as anyone who “does himself or by or through others” performs construction); A.R.S. § 32-1151 (making it unlawful for anyone without a contractor’s license in good standing to engage in contracting). [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [12] This statutory subsection 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.” The rule violated here was A.A.C. R4-9-108, which 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.”

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