ALJDEC decisions subject to certification as final

2010A-308475664-ROC · Registrar of Contractors · 2011-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2011 APPEARANCES: Toni A. Paskey appeared personally. Canez Lath and Plastering, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Canez Lath and Plastering, Inc. (“Respondent”) is the holder of License No. 181542, a Class C-36 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On July 1, 2010, Toni A. Paskey (“Complainant”) accepted Respondent’s Proposal dated June 29, 2010, for the performance of lath and stucco work at Complainant’s residence in Phoenix, Arizona. 3. On September 7, 2010, Complainant filed a written Complaint with the Registrar alleging that Respondent damaged her garage roof and interior while contracting at her residence. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, and (15). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2010-[number redacted] that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. On March 2, 2011, Complainant filed an emergency continuance request. On March 4, 2011, the Office of Administrative Hearings issued an Order Granting Continuance dated March 4, 2011, that advised the parties of the continued hearing date and time. The Order Granting Continuance was sent to the parties at their addresses of record with the Office of Administrative Hearings. 8. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. At the hearing, Complainant presented documentary evidence that her insurance carrier, Farmers Insurance Group, and an unlicensed contractor, James Twombly, both believed that the damage to Complainant’s garage roof was caused by a person on the roof. However, there is no direct evidence to establish that Respondent’s workers caused the damage. 10. There is evidence that Respondent did not properly list its name and contracting license number on its written proposal accepted by Complainant. Further, Respondent’s written proposal does not contain the required minimum elements of a contract. For example Respondent’s name, address and contracting license number do not appear on the contract, there is no estimated completion date, and there is no explanation of Complainant’s rights to file a complaint with the Registrar. 11. There is no evidence that Respondent contracted using a name other than the name appearing on its contracting license. 12. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 181542 was suspended for non- renewal on February 1, 2011, and suspended for lack of bond on March 17, 2011. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspensions of Respondent’s License No. 181542 for lack of bond and non-renewal do not deprive the Registrar of jurisdiction to impose discipline upon that license for proven statutory and/or regulatory violations in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 4. Complainant failed to sustain her burden of proving that Respondent damaged her roof while working on her house. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, as charged in the Citation and Complaint issued by the Registrar. The factual basis for this conclusion is Respondent’s failure to properly list its contracting license number in its written proposal, and the failure of Respondent’s proposal to contain the statutorily required minimum elements of a contract. 6. Complainant failed to sustain her burden of proving that Respondent contracted in a name other than the one appearing on Respondent’s contracting license. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A) (15), as charged in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER Respondent’s License No. 181542 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. If Respondent reinstates License No. 181542 and provides the Registrar with proof that Respondent has become fully compliant with the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, and the Registrar approves proof of such compliance, on or before the effective date of the Order entered in Case No. 2010-[number redacted], then the above-provided license revocation shall not take place, but instead the Citation and Complaint in Case No. 2010-[number redacted] shall be closed. 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, April 19, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826