ALJDEC decisions subject to certification as final

2010A-308473142-ROC · Registrar of Contractors · 2012-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2012

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife; no one appeared on behalf of Respondent.

WITNESSES: Scott Deering, ROC Inspector Charles Crehore Sandra Crehore

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set 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. As noted above, Respondent did not appear at the compliance hearing; therefore, Complainant’s evidence is uncontested. Procedural Background On November 2, 2010, the Registrar of Contractors (“ROC”) issued a default Decision and Order (“D & O”) that gave Respondent 40 days to perform corrective work described in a June 4, 2010, Corrective Work Order (“CWO”). The work concerned poor roofing work that had been done by Respondent. If Respondent did not complete the work in the time provided, its license was to be revoked. Thereafter, Respondent contacted the ROC claiming that it was in compliance with the Order. Complainant disputed that claim. In August 2011, the ROC issued an order setting this case for a compliance hearing. Introduction The ROC’s Order Setting Compliance Hearing states that the parties are to present evidence as to “whether or not Respondent has complied with the terms set forth in the Registrar’s November 2, 2010 Default Decision and Order.” This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the D & O. Complainant presented testimony from the witnesses listed above at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that the evidence shows that Respondent has not complied with the D & O. FINDINGS OF FACT 1. Respondent was the holder of license K-5.243606-D, a dual specialty restricted contracting license issued by the ROC. The license was restricted by the ROC and authorized Respondent to perform only “foam and foam panel roofing” work for both commercial and residential projects. Mark David Passerrelli was Respondent’s Qualifying Party. The license was revoked on May 18, 2011, but the ROC’s website information does not state the reason for the revocation.[1] 2. ROC Inspector Scott Deering testified that the CWO (and therefore the subsequent D & O) had ordered Respondent to repair the roof and “all interior water damage.” He performed a compliance inspection on October 25, 2011, and found that no work had been done to the interior damage in the home. 3. Charles and Sandra Crehore testified to the same thing, agreeing that the roof had been corrected but that no work was done to repair the interior damage. 4. Complainant’s evidence is uncontested. 5. The evidence does not show that Respondent is in compliance with the D & O. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Since the onus to establish compliance was placed on Respondent by the D & O and since Respondent has asserted that it should be deemed to be in compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the ROC Order.[4] Respondent has failed to meet that burden. 2. As noted, the evidence does not show compliance with the Order. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.243606-D, held by M and T Roofing, LLC, be revoked for failure to comply with the D & O.

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 23, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] There is no evidence in the record that the license was revoked pursuant to the D & O. [2] Arizona Administrative Code (A.A.C.) R2-19-119(B). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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