ALJDEC decisions subject to certification as final

2010A-308471421-ROC · Registrar of Contractors · 2011-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 8, 2011 APPEARANCES: Robert C. Howe appeared personally and was represented by his attorney, Nathaniel B. Rose, Esq. Cavalliere’s Blacksmith Shop, L.L.C. did not appear. 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. Cavalliere’s Blacksmith Shop (“Respondent”) is the holder of License 188144, a Class C-17R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On March 12, 2010, Robert C. and Sharon A. Howe (“Complainants”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent for wrought iron work performed in the construction of Complainants’ residence in Scottsdale, Arizona. 3. The Registrar designated Complainants’ Complaint as Case No. 2010- [number redacted]. 4. Complainants’ Complaint listed the following complaint items: 1. The rod [sic] iron fence and railing are improperly installed and loose. 2. The rod [sic] iron fence and railing are not sealed properly. 3. Upon information and belief, the rod [sic] iron fence and railing do not comply with applicable codes and regulations. 4. Failure to complete work required under the contract, failure to repair defective work and/or pay the cost necessary for another contractor to complete and/or repair work despite repeated requests to do so.

5. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 6. Respondent timely filed an answer to the Citation and Complaint in which it contended that it only fabricated the wrought iron work but that it did not install the work. 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing in Case No. 2010-[number redacted] advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 9. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 10. Complainants presented credible evidence to support the allegations contained in their Complaint. However, the record does not support the charge that Respondent failed to properly list its contracting license number on any document used in its contracting business. 11. A review of the Registrar’s official electronic licensing records reveals that Respondent’s contracting license expired on October 1, 2008. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the expiration of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline against that license for proven statutory and/or regulatory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2) and (3), specifically A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 188144 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. 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, February 28, 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