ALJDEC decisions subject to certification as final

2010A-308471927-ROC-com · Registrar of Contractors · 2012-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2012, at 8:00 a.m. APPEARANCES: Patricia Mazzarella (hereinafter “Complainant”) appeared on her own behalf. Security Fence of Arizona Inc. (hereinafter “Security”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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 Lifting Suspension/Setting Compliance Hearing provided in pertinent part as follows: On September 30, 2010, the Registrar issued a Default Decision and Order in this matter providing that Respondent’s C- 14.131358-R License would be suspended on the effective date of the Order and remain suspended until the Registrar received proof that Respondent appropriately rectified the corrective work involved and detailed in the Complaint and the Registrar’s Corrective Work Order. The Order further [required] Respondent to pay the sum of $250.00 to the Registrar by way of civil penalty pursuant to A.R.S. § 32-1154(D) on or before the expiration of thirty (30) days from the effective date of the Order or risk the revocation of its License. The September 30, 2010 Default Decision and Order had an effective date of November 9, 2010.

On or about October 5, 2010, Respondent submitted a Request for Rehearing in this matter. On April 11, 2011, the Registrar denied Respondent’s Request for Rehearing providing that the September 30, 2010 Order would go into effect on May 24, 2011, unless an appeal was filed with and a Stay Order obtained from an appropriate Superior Court.

On or about May 3, 2011, Respondent paid the $250.00 civil penalty.

On or about May 6, 2011, Respondent submitted a second Request for Rehearing providing, among other things, that Complainant denied Respondent access to comply with the Registrar’s Corrective Work Order and that Complainant rejected Respondent’s proposed offer to refund $250.00 to Complainant as settlement of this matter.

On August 11, 2011, the Registrar issued an Order Rejecting Respondent’s Second Request for Rehearing. The Order provided that Respondent’s C-14.131358-R License would be suspended on that same day in accordance with the terms of the Registrar’s April 14, 2011 Order Denying Request for Rehearing.

On or about August 15, 2011, Respondent submitted written correspondence in this matter with the Registrar providing, among other things [,] that Complainant “did not want Security Fence back on [Complainant’s] property.” Attached were copies of correspondence between Complainant and Respondent whereby Complainant indicated that she would prefer to have an alternative contractor perform all necessary correction work.

On or about August 29, 2011, Respondent submitted copies of written correspondence further evidencing Complainant’s alleged interference with Respondent’s attempts to resolve this matter. Attached to Complainant’s written correspondence was a copy of Check No. 006025, made payable to Patricia Mazzarella, in the amount of $999.00, with a notation of “Refund of Deposit-Contract Cancelled” dated August 24, 2011, and a letter addressed to Complainant, dated August 23, 2011. A review of the Complaint filed in this matter reveals that $999.00 was the amount of money paid by Complainant to Respondent thus far with regard to the project at issue.

On or about September 27, 2011, Complainant submitted written correspondence in this matter providing, among other things, that while Complainant admitted to disallowing Respondent to return to her property, such was because each time she attempted to work with Respondent she has “been met with sarcasm, insults, and aggressive accusations, not to mention, physical intimidation.”

As to the refund of $999.00, Complainant maintains that such amount is unacceptable as she incurred $3000.00 in extra costs and that further, Respondent’s original work caused additional damage to the wall at issue.

Upon review and consideration of the foregoing submissions, 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 failed to comply with the Registrar’s directives, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent 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 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.

IT IS FURTHER ORDERED that the suspension imposed upon Respondent’s License be lifted effective the date of this Order. Respondent’s License may be subject to future discipline, as set forth above, if it is determined that Respondent has failed to comply with the terms of the Registrar’s September 30, 2010 Order absent unreasonable interference or denial of access on the part of Complainant.

Note: It appears undisputed that Complainant denied access to Respondent and its representatives to perform corrective work; and, generally, a denial of access is grounds for case closure. However, Complainant alleges that her denial of access was justified based upon Respondent’s alleged inappropriate [] conduct and her serious health condition. Whether such justification is valid is an issue to be examined by the assigned Administrative Law Judge. However, it should be noted that irrespective as to Respondent’s conduct or Complainant’s health condition, Complainant may not dictate to Respondent the manner or method of repairs to be performed for Respondent to be in compliance with the Registrar’s Order. Further, Complainant may not restrict which representatives of Respondent are either present for or perform the necessary repairs.

2. The assigned Agency Inspector, Richard Clark Allen (hereinafter “Inspector Allen”), conducted an onsite pre-hearing compliance inspection at Complainant’s residence on November 9, 2012, at 9:30 a.m. Inspector Allen testified that he observed that no corrective work had been performed on Complainant’s fence and that Security had failed to comply with the terms of the Registrar’s directive. Inspector Allen stated that the Agency Inspector originally assigned to this matter was no longer with the Registrar of Contractors. Inspector Allen stated that he agreed with the terms of the Corrective Work Order. Inspector Allen testified that he had no direct knowledge of any denial of access by Complainant.[1] 3. Complainant’s son, Justin David Mazzarella (hereinafter “Mr. Mazzarella”), testified that during the construction project, he observed Security’s employees drinking alcoholic beverages at his mother’s residence. Mr. Mazzarella stated that Security’s supervisor, Gary Bobell (hereinafter “Mr. Bobell”), treated his mother in an intimidating and disrespectful manner.[2] 4. Complainant testified that she did not deny access to Security. Complainant acknowledged that she did inform Security that she would not allow an individual whom she identified as Mr. Bobell back on her property and that she was not willing to allow Security’s concrete subcontractor access to her property. 5. Complainant testified that Mr. Bobell had behaved in a physically intimidating manner at her residence. Complainant stated that Mr. Bobell was a very tall man, who would stand within arm’s length of her and speak to her in a loud and intimidating manner. Complainant testified that Mr. Bobell told her “you wouldn’t know anything about this” and “you don’t know what you are talking about.” Complainant stated that she had just been released from the hospital for “uncontrolled hypertension” and that she found his intimidating behavior to be very upsetting.[3] 6. Complainant testified that Security’s first concrete subcontractor would arrive at her residence without notice. Complainant stated that the first subcontractor would ignore her and not answer her questions. Complainant testified that she observed one employee of the first concrete subcontractor drinking beer at the jobsite. Complainant stated that the first concrete contractor dumped concrete residue in the wash adjoining her property. Complainant stated that she repeatedly called Security about the actions of the first concrete subcontractor.[4] 7. Complainant testified that Security contacted her twice after the Default Decision and Order was issued. Complainant stated that she agreed to allow Security access to her residence to perform the directed corrective work, provided that Mr. Bobell was not involved and that Security utilized an alternative concrete subcontractor because of the prior inappropriate behavior of Mr. Bobell and the first concrete subcontractor. Complainant testified that Security informed her that Mr. Bobell no longer worked for Security and that Security no longer utilized the first concrete subcontractor.[5] 8. Complainant testified that she informed Security that she “preferred” that another contractor perform the corrective work. Complainant denied that she demanded that another contractor perform the directed corrective work. Complainant stated that she agreed to allow Security’s new concrete subcontractor access to her residence to inspect her fence.[6] 9. Complainant testified that she allowed Security’s new concrete subcontractor access to her residence. Complainant stated that the new concrete subcontractor examined her fence and informed her that the directed corrections to the fence would not bring the fence to within applicable code requirements. The second concrete subcontractor then conditioned its performance of the directed corrective work upon Complainant’s first signing a written release regarding code compliance. Complainant stated that when she refused to sign the release, the new concrete subcontractor stated that he did not want to be involved and left.[7] 10. Complainant’s email to Security of 4/20/10 provides, in pertinent part, as follows: I hope that this corrective work can be done as ordered. I can make time available anytime within the remaining days but need some notice to arrange to be here. Please note that any corrective work needs to be done by other than these two employees [who] were hostile, rude, and threatening. They were verbally abusive and personally intimidating and I found it necessary to call your office saying that they could not come back on my property.[8]

11. Complainant acknowledged that she had received a check from Security and an Offer of Settlement. Complainant testified that the $999.00 check from Security was unacceptable because she feels that the wall was built without rebar and is unstable. Complainant stated that she has not cashed the check.[9] 12. Complainant’s undisputed testimony is found to be credible. 13. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on November 13, 2012. Such prior license record reflects that License No. C- 14.131358-R of Security is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, ARIZONA LAW OF EVIDENCE § 5 (1960). 3. There was no dispute that Security did not perform any corrective action on Complainant’s fence. Undisputed credible testimony established that Complainant’s refusal to allow Mr. Bobell and Security’s first concrete subcontractor back on her property to perform corrective action on her fence was reasonable and justified under the circumstances. There was no credible evidence of an unreasonable denial of access by Complainant. This Tribunal concludes that Security has failed to fully comply with the terms of the September 30, 2010 Default Decision and Order issued by the Registrar of Contractors. RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 14.131358-R of Security shall be suspended until the Registrar of Contractors receives and accepts written proof that Security has fully complied with the terms of the September 30, 2010 Default Decision and Order. It is further recommended that if Security provides acceptable proof that it has fully accomplished the above described corrective action, then the above provided license suspension shall be lifted and that this matter shall 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, November 19, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 11/13/12 Hearing Record (hereinafter “H.R.”) at 12:31-13:22. [2] H.R. at 14:28-17:20. [3] H.R. at 18:24-23:32. [4] H.R. at 24:10-27:11. [5] H.R. at 27:12-29:49. [6] H.R. at 29:50-30-21. [7] H.R. at 30:22-31:16. [8] See Exhibit C-1 (4/20/10 3:15:21 p.m. email to Security). [9] H.R. at 40:05-43:12.

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