ALJDEC decisions subject to certification as final

2010A-308476605-ROC · Registrar of Contractors · 2011-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FINDINGS OF FACT In April 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC132914, Class B-2 for general small commercial contracting to Frank J. Salazar, Inc., doing business as (“dba”) F J S Construction (“Respondent”). On October 18, 2010, the Registrar received a complaint against Respondent from Don Doyle (“Complainant”) regarding Respondent’s installation of concrete sidewalks and handicap ramps at a commercial project at 1430-1440 West Valencia in Tucson, Arizona. The complaint requested that the Registrar require Respondent to reimburse Complainant the sum of $5,771.00, representing the amount that Complainant paid to three other contractors to demolish and replace a portion of Respondent’s work, allegedly because the City of Tucson required such demolition and replacement to issue a certificate of occupancy. Complainant provided his address on the complaint form as 1600 North Tucson Boulevard, Suite 200, Tucson, Arizona 85712. On November 12, 2010, Complainant requested a hearing. On November 30, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2) and (3) (namely A.A.C. R4-9-108). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that because Complainant hired other contractors to modify Respondent’s work, neither the Registrar nor Respondent were able to inspect Respondent’s work to verify Complainant’s complaint. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On February 9, 2011, the Registrar issued a Notice of Hearing, setting a hearing on March 31, 2010, at 1:00 p.m. before the OAH. On February 24, 2011, the OAH received Respondent’s motion to dismiss Complainant’s complaint. Respondent attached to its motion a memorandum from the general contractor on the project at 1430-1440 West Valencia, stating that the substantial date of completion of the project was April 3, 2008. Respondent alleged that it did not perform any work on the project after the substantial date of completion. Respondent’s motion to dismiss stated two grounds: (1) Subsequent contractors’ substantial modifications of Respondent’s work deprived Respondent of any opportunity to inspect its allegedly deficient work under A.R.S. § 32-1155(C); and (2) Complainant’s October 18, 2010 complaint to the Registrar was untimely under A.R.S. § 32-1155(A) because it was filed more than two years after Respondent last performed work on the project. Respondent’s motion to dismiss showed that a copy of the motion had been mailed to Complainant at the address provided on the complaint form. Under A.A.C. R2-19-106(D), R2-19-107, and R2-19-108(F)(2), Complainant’s response to Respondent’s motion to dismiss was due at the OAH no later than March 10, 2011. As of the date of this Administrative Law Judge Decision, Complainant has not filed a written response to Respondent’s motion to dismiss. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Respondent bears the burden of proof to establish grounds to support its motion to dismiss by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] The factual allegations in Respondent’s motion to dismiss are undisputed and consistent with the factual allegations in Complainant’s complaint. Therefore, Respondent established two grounds on which the Registrar should dismiss Complainant’s complaint: (1) Subsequent contractors’ substantial modifications of Respondent’s work deprived Respondent of any opportunity to inspect its allegedly deficient work under A.R.S. § 32-1155(C);[4] and (2) Complainant’s October 18, 2010 complaint to the Registrar was untimely under A.R.S. § 32-1155(A)[5] because it was filed more than two years after April 3, 2008, after which date Respondent did not perform any further work on the project. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss the Citation and Complaint issued in Case No. 2010-[number redacted] against Respondent Frank J. Salazar, Inc., dba F J S Construction’s License No. ROC132914, Class B-2. 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, March 11, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.A.C. R2-19-119(A) and (B)(3). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] A.R.S. § 32-1155(C) provides as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor’s work has been subject to neglect, modification or abnormal use. [5] A.R.S. § 32-1155(A) allows the Registrar to open an investigation “[u]pon the filing of a written complaint . . . charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license . . . .”

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