ALJDEC decisions subject to certification as final

2010A-308472581-ROC-com · Registrar of Contractors · 2012-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2012

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Gordon S. Bueler, Esq., BUELER JONES, LLP, accompanied by corporate President and Qualifying Party Steve Letcher.

WITNESSES: Tony Garcia, Diamond L Construction Roslyn Thompson Steve Letcher

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent has complied with an Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Order adopted an Administrative Law Judge Decision and required Respondent to perform corrective work as described in the ALJ Decision. Respondent alleges that it attempted to comply but was not allowed reasonable access to perform the required corrective work. Complainants deny the allegation. This tribunal entered the full complaint file received from the Registrar into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Order. In addition, Exhibits 1 through 4 were admitted to the record. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent is not in compliance. Procedural Background Following an administrative hearing, the Registrar issued a July 25, 2011 Order that gave Respondent until September 3, 2011, to perform corrective work or have its license suspended until Respondent shows that it is in compliance with the July 25, 2011 Order. On August 11, 2011, Respondent filed a written statement with the Registrar stating that Complainants were not allowing access to perform the corrective work. Respondent requested closure of the case. Complainants responded on September 12, 2011, stating that they were not denying access to Respondent. The ROC denied a rehearing request by Respondent on June 28, 2012. The Registrar also issued an order setting the matter for compliance hearing. The Registrar’s June 28, 2012 Order Setting Compliance Hearing states that the compliance hearing is to determine “whether or not Complainants have 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 on the part of Complainants.” FINDINGS OF FACT 1. Respondent is the holder of License No: B.122360-R, a general residential contracting license issued by the Registrar. Steve Letcher is Respondent’s Qualifying Party. 2. As noted above, the July 25, 2011 Order required Respondent to perform corrective work, based on a recommendation from an Administrative Law Judge who had conducted a hearing on May 31, 2011 and issued an Administrative Law Judge Decision on June 20, 2011. E-mail correspondence between the parties shows that Respondent contacted Complainants on July 14, 2011, and told them that it had subcontractors ready to do the corrective work on July 26 and 27, 2011.[1] Respondent did not clear these dates with Complainants prior to the e-mail. 3. On July 18, 2011, Complainants contacted Respondent by telephone and said that July 27 was not a good day for them and that they were not comfortable scheduling the work before the final decision from the ROC was issued.[2] The e-mail that documents those facts also notes that earlier in the day, before the telephone conversation between the parties, Respondent’s subcontractor Tony Garcia told Respondent that Complainants had agreed to allow access on July 26 and 27, 2011. 4. Based on all of the evidence, including the e-mails and the testimony of Tony Garcia, Roslyn Thompson, and Steve Letcher, the following events occurred on July 18, 2011: That morning, Tony Garcia telephoned Complainants to confirm the dates of July 26 and 27, 2011; dates that had been given to him by Respondent. Complainants either said okay or did not voice objection.[3] During the day, Complainants had second-thoughts about it due to a conflict with July 27 and because the ROC final order had not yet been issued.[4] Complainants called Respondent that afternoon and told Respondent that there was a problem with those dates and that they wanted to wait for the final order to be issued. 5. On July 20, 2011, Complainants responded to an e-mail from Respondent’s counsel and stated that July 26 and 27 were not available and that neither was any day until after July 29, 2011, when they returned from an out-of-town trip.[5] Respondent’s counsel replied by e-mail on July 25, 2011, stating that the next available dates to do the work were August 9 and 10.[6] Counsel requested that Complainants contact him upon their return. On August 1, 2011, having had no response from Complainants, Respondent’s counsel sent another e-mail to Complainants asking for dates to schedule the work.[7] 6. Complainants testified that they were out of town at the end of July and did not get back on July 29 like they had thought they would. They returned sometime during the first week of August. According to Complainants’ testimony and a note to the ROC,[8] Complainants called Respondent on August 8 to respond to the August 1 e-mail, telling Respondent that the rest of the month was open for scheduling the work. Respondent told them to contact Respondent’s counsel. 7. On August 11, 2011, Respondent contacted the ROC stating that Complainants had refused to allow access and asking the ROC to close the case. 8. On August 17, 2011, Complainants sent an e-mail to Respondent’s counsel stating that they were not barring Respondent from access to perform the corrective work and that “the whole month of August is available.” 9. When Complainants did not get a response, on August 23 they sent an e-mail to Respondent’s counsel again stating that they were ready to get the work scheduled. Respondent did not respond to that e-mail, but filed a Request for Rehearing with the ROC on August 29, 2011. Respondent made no other attempts to schedule the corrective work. 10. The Administrative Law Judge does not find any of Complainants’ actions to be unreasonable. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[9] Further, the standard of proof at hearing is by preponderance of the evidence.[10] Since the July 25, 2011 Order required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the July 25, 2011 Order.[11] Respondent has not met that burden. 2. The evidence shows that Respondent set the initial dates for corrective work without input from Complainants and at a time when there was not yet a final Order issued by the ROC. Under those circumstances, it was reasonable for Complainants to want to reschedule and to want to wait until after an order was issued. Sometime during the first two weeks of August, Respondent appears to have made the choice to put its efforts into requesting rehearing and seeking closure of the case rather than performing the corrective work. Complainants were ready and willing to allow access from mid-August going forward. Respondent did not take advantage of that accessibility. 3. As noted in the June 28, 2012 Order Setting Compliance Hearing: “If it is determined that Respondent has failed to comply with the terms of the July 25, 2011 Order in this matter, absent unreasonable interference by Complainants, Respondent’s B.122360-R License shall be subject to the immediate imposition of discipline.” 4. This tribunal concludes that Respondent has failed to comply with the July 25, 2011 Order and that Complainants presented no unreasonable interference with its ability to do so. Therefore, immediate suspension of the license is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s B.122360-R License shall be immediately suspended until Respondent submits written proof to the Registrar, and the Registrar approves such proof, that Respondent performed remedial work in a workmanlike manner of the items involved and detailed in the June 20, 2011 Administrative Law Judge Decision as adopted by the Registrar in the July 25, 2011 Order.

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 the date of that certification.

Done this day, August 27, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 4. [2] Exhibit 5. [3] Tony Garcia’s memory with regard to these events was not strong when he testified at the compliance hearing over one year later. This is understandable given the time lapse, but it means that the documentation in the e-mails is more reliable and is given more weight. [4] The Administrative Law Judge finds that this is a reasonable position to take. [5] Exhibit 1. [6] Exhibit 2. [7] Exhibit 3. [8] Agency Electronic Record, Lg Rehrg Notice1.pdf at 7. [9] Arizona Administrative Code (A.A.C.) R2-19-119(B). [10] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [11] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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