ALJDEC decisions subject to certification as final

2010A-308474288-ROC · Registrar of Contractors · 2011-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Greg Koeneman, ROC Inspector Patrick DeJonghe

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship regarding concrete work Respondent did on Complainant’s patio. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits A and B. Complainant presented evidence and testimony from the witnesses noted above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of license K-5.214543-D issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform concrete resurfacing. James Kelley is Respondent’s Qualifying Party. The license is currently revoked. 2. In February 2009, Complainant hired Respondent to resurface his backyard concrete patio. In July 2010, Complainant filed a complaint with the ROC stating that the work done on the patio was chipping, cracking, and peeling off. ROC Inspector Greg Koeneman performed an onsite inspection and issued a Corrective Work Order (“CWO”) on July 22, 2010. The CWO ordered Respondent to correct “chipping and flaking” in the concrete overlay on Complainant’s patio. 3. Respondent did not perform any work on the patio after issuance of the CWO. In fact, Respondent informed the ROC that Respondent was out of business and had closed down. Complainant requested a hearing. 4. At hearing, Inspector Koeneman testified in support of the CWO. 5. Complainant submitted two bids from other contractors for repair of the patio.[1] Because he does not believe that Respondent has the means to make the repairs or pay others to do so, Complainant is not requesting restitution in this proceeding. He intends to make a claim with the Residential Contractors’ Recovery Fund. 6. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainants have met that burden. 2. The evidence shows poor workmanship by Respondent and a failure to correct its work by complying with the CWO. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(23), and (A)(3) by way of ROC Rule R4-9-108. 3. A review of current ROC records shows that Respondent’s license was revoked in August 2010, and again in November 2010. Pursuant to A.R.S. § 32-1154(C), revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license in this matter. 4. Respondent’s license should be revoked in this matter. Complainant may then make a claim to the Fund. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.214543-D, held by Betsy Jean Enterprises, Inc. dba Concrete Texturing, 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 the date of that certification.

Done this day, January 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits A and B. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [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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