ALJDEC decisions subject to certification as final

2010A-308472677-ROC-com · Registrar of Contractors · 2012-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Ken Gregory, accompanied by Qualifying Party Charles Scott Wheaton.

WITNESSES: Frank Grosey Carol Grosey C. Scott Wheaton Steven Wheaton

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a compliance hearing to determine whether Respondent is in compliance with an Order issued by the Registrar of Contractors. That Order required Respondent to perform corrective work. Respondent claims that it was not provided reasonable access to perform the work. Procedural Background On October 28, 2010, the Registrar of Contractors (“ROC”) issued an Order that adopted an Administrative Law Judge Decision finding Respondent in violation of the contracting statutes. The Order gave Respondent until December 7, 2010, to perform corrective work laid out in the Order or have its license suspended. The Order required Respondent to “reinstall the flooring in the manner that was specified in the contract.” On December 16, 2010, Respondent filed a Notice of Compliance, claiming that Complainant did not allow access to perform the work because Complainant cancelled an appointment. Complainant responded by letter on June 15, 2010, stating that Respondent had not returned a phone call made by Complainant. On October 17, 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that at the compliance hearing the parties are to present evidence as to whether or not Respondent has complied with the Order: 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 B.209875-R 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 attempts to comply with the Registrar’s October 28, 2010 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.

This tribunal entered the complaint file received from the Registrar of Contractors into the record, including documentation relating to the underlying complaint and relating to the question of compliance with the Order. No additional documentation was presented. Testimony from the witnesses listed above was presented. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that there was no unreasonable denial of access, that Respondent is not in compliance, and that there should be immediate revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of a class B general residential contracting license (No. 209875) issued by the ROC. The license authorizes Respondent to operate as a general contractor for residential projects. C. Scott Wheaton is Respondent’s Qualifying Party. The license was not suspended in this matter, but Respondent failed to renew the license in August 2011, and therefore, the license is currently suspended for failure to renew it. 2. Complainant testified at the compliance hearing that Respondent did not request access to do the work until December 2010, and that he denied access at that time because Carol Grosey was doing holiday baking for a few days at the time. This tribunal finds that this was a reasonable restriction of access. 3. C. Scott Wheaton testified that Respondent and Complainant had scheduled the flooring to be done on December 10, 2010. Complainant then cancelled that date because of the baking. No further communication occurred, and Respondent filed the Notice of Compliance. 4. The October 28, 2010, Order requires that Respondent perform the work by December 7, 2010. Respondent did not set a date with Complainant until the end of the compliance period in early December 2010. A date was set, but Complainant had a reasonable excuse for changing it due to the holidays. There is no evidence that Respondent offered other dates to Complainant or that Complainant refused access on any other dates. 5. Respondent has not shown compliance with the Order by December 7, 2010, or anytime thereafter. However, Respondent’s license was not suspended. 6. The evidence does not support a finding that Complainant unreasonably limited access to the property or unreasonably interfered with Respondent’s ability to perform the corrections. Had Respondent contacted Complainant earlier in November, the circumstances in December may have been avoided. Respondent is charged with compliance with the Order, not Complainant. The evidence does not show that Respondent made compliance with the Order a priority. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] In this matter, Respondent was ordered to comply with the Order and show written proof of compliance. In addition, Respondent claimed in correspondence to the ROC that Respondent was in compliance. Therefore, Respondent bears the burden of showing, by a preponderance of evidence, that Respondent has complied with the Order.[3] Respondent has not met that burden. 2. Under the provisions of the October 28, 2010 Order, Respondent was to provide written proof that Respondent had properly corrected the flooring. The Order put the burden on Respondent to pursue compliance or face suspension of its license. Respondent was not timely in its pursuit of compliance, and then offered no alternative dates to Complainant when Complainant reasonably canceled the appointment. 3. Respondent did not comply with the Order. 4. Because Respondent has not renewed the license, it is currently suspended by operation of law for non-renewal. This leaves the Administrative Law Judge no option but to recommend revocation.[4] RECOMMENDED ORDER IT IS RECOMMENDED that license B.209875-R, held by Wheaton Building, Inc., be revoked immediately.

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, January 3, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Arizona Administrative Code (A.A.C.) R2-19-119(B). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] If the license were not currently suspended, the Administrative Law Judge would recommend immediate suspension of the license until compliance was achieved, giving Respondent one final chance.

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