ALJDEC decisions subject to certification as final

2010A-308475958-ROC-com · Registrar of Contractors · 2013-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2013, at 8:00 a.m. APPEARANCES: Karen Erickson (hereinafter “Complainant”) appeared on her own behalf. Eugene Michael Luna dba Benchmark Builders (hereinafter “Benchmark”) appeared through Benchmark’s Qualifying Party, Eugene Michael Luna. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. .The Order Denying Request for Rehearing/Order Setting Compliance Hearing provides, in pertinent part, as follows: On July 6, 2011, the Registrar issued an Order in this matter providing that Respondent’s B.159955-R License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had fully complied with the terms of the written Corrective Work Order issued in this matter. If Respondent provided acceptable proof to the Registrar that it had fully accomplished the corrective action, on or before the effective date of the Order, then Respondent’s B.159955-R License would not be suspended. Respondent was further ordered to pay a civil penalty in the amount of $300.00 on or before the expiration of thirty (30) days after the effective date or risk the automatic revocation of its B.159955-R License. The Order had an effective date of August 15, 2011.

On or about July 14, 2011, Complainant submitted written correspondence, dated July 11, 2011, in this matter alleging that Respondent had yet to commence the performance of any corrective work.

On or about July 20, 2011, Respondent submitted payment to the Registrar in the amount of $300.00 for the civil penalty in accordance with the terms of the Registrar’s July 6, 2011 Order.

On or about August 10, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “has completed the work ordered through the Corrective Work Order issued October 6, 2010.” Respondent further maintained, that “Complainant has refused to acknowledge that [Respondent’s] work is completely satisfactory.”

On or about that same day, Respondent submitted its Request for Rehearing in this matter alleging unreasonable interference on the part of Complainant in that she refuses to sign a release acknowledging the acceptance of the corrective work. In the alternative, Respondent requested that the Registrar perform a Compliance Inspection, and if the Inspector concludes that all necessary work has been performed and meets minimum workmanship standards, then no rehearing would be necessary.

On December 12, 2011, the Registrar received the Administrative Law Judge’s Recommended Order in this matter.

IT IS ORDERED that the Registrar adopts the Administrative Law Judge’s attached Recommendation to Deny Respondent’s Request for Rehearing.

IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Tucson area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference by Complainant. If it is determined that Respondent has failed to fully comply with the terms of the July 6, 2011 Order, absent unreasonable interference or denial of access on the part of Complainant, then Respondent’s B.159955-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the July 6, 2011 Order or that Complainant has unreasonably interfered or denied Respondent access to fully comply with the terms of the Order, then this matter shall be closed with no discipline imposed upon Respondent’s B.159955-R License in this matter.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

This Order constitutes a final administrative decision reviewable pursuant to the provisions of A.R.S. §12-901, and the previously entered Order will be in full force and effect on January 7, 2013, unless a Stay Order is secured from Superior Court on or before said date.

Note: If an appeal is filed, such shall be limited to the denial of the Request for Rehearing. The determination as to whether or not a Compliance Hearing is warranted does not accrue appeal rights and lies within the sole discretion to the Registrar.

Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it fully complied with the terms of the July 6, 2011 Order.

2. The assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), testified that he performed a pre-hearing Compliance Inspection at Complainant’s residence on February 14, 2013. Inspector Nieves testified that he inspected each item on the Corrective Work Order.[1] Inspector Nieves stated that Benchmark had failed to correct item nos. 3 and 8 of the Corrective Work Order. Inspector Nieves testified that he could not make a determination regarding item nos. 2 and 4. Inspector Nieves stated that Benchmark had properly corrected the remaining items of the Corrective Work Order. Inspector Nieves opined that Benchmark had failed to fully comply with the terms of the Corrective Work Order and the July 6, 2011 Order of the Registrar.[2] 3. Inspector Nieves’ testimony is found to be credible. 4. Complainant testified that the terms of the Corrective Work Order had not been fully complied with. Complainant stated that she was dissatisfied with the corrective work that was performed at her residence. Complainant testified that Benchmark sent a man named “Mark Hall” (hereinafter “Mr. Hall”)[3] to perform the corrective work on her security door. Complainant stated that Home Depot provided a second security door free of charge and that the second door was installed improperly.[4] 5. Eugene Michael Luna (hereinafter “Mr. Luna”) testified that the size of the first security door supplied by Complainant caused him to “cut” the existing door frame down. Mr. Luna acknowledged that cutting the existing door frame down “may have been a mistake.” Mr. Luna stated that he hired Mr. Hall to perform the corrective work on Complainant’s security door. Mr. Luna stated that Mr. Hall had installed hundreds of doors for him. Mr. Luna stated that he had every confidence in Mr. Hall. Mr. Luna testified that he did not go back to Complainant’s residence because he believed that Complainant did not want him at her residence. Mr. Luna stated that he requested access to Complainant’s residence and that Complainant informed him that she did not want anyone visiting her residence unless she was home.[5]. 6. Mr. Luna testified that there was nothing that he could do about the “play” in the security door. Mr. Luna stated that he had to pay Home Depot for the replacement security door because there was nothing wrong with the original security door.[6] 7. Complainant testified that she called Home Depot and was informed that the first security door would be replaced without charge as a warranty item. Complainant stated that she informed Mr. Hall that Mr. Luna could come to her residence with Mr. Hall and take photographs of the completed corrective work. Complainant testified that Mr. Hall stated that “it would be best if Mr. Luna did not come back to Complainant’s residence.” Complainant stated that Mr. Luna was “not easy to work with.”[7] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence established that Benchmark failed to fully comply with the terms of the Corrective Work Order and the July 6, 2011 Order of the Registrar. This Tribunal concludes that Benchmark failed to fully comply with the terms of the July 6, 2011 Order of the Registrar. 4. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. RECOMMENDed order In view of the foregoing, it is recommended that Benchmark’s License No. B.159955-R shall be immediately suspended until the Registrar of Contractors receives and accepts written proof that Benchmark has fully complied with the terms of the July 6, 2011 Order of the Registrar. It is further recommended that when, and if, Benchmark provides acceptable written proof to the Registrar of Contractors that Benchmark has fully complied with the terms of the July 6, 2011 Order of the Registrar, then the above provided immediate License suspension shall be lifted and this matter shall be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 5 days from the date of the certification. Done this day, March 7, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] The Corrective Work Order provided, in pertinent part, as follows:

Contractor to correct the following by appropriate means:

1. Messed up fiberglass on inside of door: Needs to be properly corrected. 2. Damaged inside wall: Needs to be properly corrected. 3. Security door crooked. Needs to be properly corrected. 4. Took out original door frame did not replace: Needs to be properly corrected. 5. Openings around security doors by brick: Needs to be properly corrected. 6. Openings around security door by frame: Needs to be properly corrected. 7. Caulk molding to security door to hide openings: Needs to be properly corrected. 8. A lot of play in security door: Needs to be properly corrected. 9. Gap on top of kitchen door. Needs to be properly corrected. [2] 2/20/13 Hearing Record (hereinafter “H.R.”) at 15:23-21:07. [3] Mark Elliot Hall, Qualifying Party for License No. C-61.219063-R of Hallmark Carpentry LLC). [4] H.R. at 21:21-30:44. [5] H.R. at 30:54-35:40. [6] H.R. at 35:41-41:38. [7] H.R. at 41:39-45:22.

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