ALJDEC decisions subject to certification as final

2010A-3753141-ROC-com · Registrar of Contractors · 2012-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its authorized representative, Evan Brinton. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms of the April 5, 2011 Order of the Registrar. 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 Registrar’s Order Setting Compliance Hearing provides, in pertinent part, as follows: Upon review and consideration, and with good cause appearing, IT IS ORDERED that this matter be set for a Compliance Hearing 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 failed to comply with the Registrar’s directives, absent unreasonable interference by Complainant. If it is determined that Complainant unreasonably interfered with Respondent’s attempts at compliance, then the suspension imposed upon Respondent’s License shall be lifted, this matter closed and Complainant may not proceed with her claim with the Residential Contractors’ Recovery Fund, even if otherwise eligible. If it is determined that Respondent failed to comply with the Registrar’s directive, absent unreasonable interference on the part of Complainant, Respondent’s License shall remain suspended and the Recovery Fund will proceed with its review of the claim. NOTE: While the Registrar imposed the terms of its April 5, 2011 Order on or about July 18, 2011, the imposition of the suspension does not justify unreasonable interference on the part of Complainant. As is provided in A.R.S. § 32-1161(B), a License may still perform corrective work, absent compensation, even after its License is suspended for a violation of A.R.S. § 32-1154(A). Further, nothing in the Registrar’s April 5, 2011 Order provided that subsequent to the effective date of the Order, Complainant could refuse or deny access to Respondent to achieve compliance. The burden is on Complainant to have selected a roofing contractor. In turn, Complainant was to inform Respondent of the selection and allow Respondent to pay for the alternative contractor’s services to allow full compliance with the terms of the two Corrective Work Orders.[1]

2. On May 9, 2011, Respondent issued its first letter to Complainant stating that Respondent would fully comply with the terms of the April 5, 2011 Order of the Registrar and asking Complainant to inform Respondent of Complainant’s choice of contractor to perform the required corrective action so that Respondent could “meet with them and cause them to comply with all corrective work orders.”[2] 3. Complainant failed to respond to Respondent’s May 9, 2011 letter. 4. On July 22, 2011, Respondent issued a second letter to Complainant stating that Respondent was attempting to comply with the terms of the April 5, 2011 Order of the Registrar and again requesting contact information for Complainant’s selected contractor.[3] 5. Complainant failed to respond to Respondent’s July 22, 2011 letter. 6. On August 11, 2011, Respondent issued a third letter to Complainant asking for contact information for Complainant’s selected contractor and stating that Respondent “would be more than willing to sit down with that contractor and cause them to comply with the work order.”[4] 7. Complainant failed to respond to Respondent’s August 11, 2011 letter. 8. There was no dispute that Complainant received all three of the Respondent’s letters requesting contact information for Complainant’s selected alternative roofing contractor. 9. Complainant admitted that she failed to select an alternative roofing contractor to perform the corrective action directed in the Registrar’s April 5, 2011 Order. 10. Complainant asserted that she was unable to find an alternative licensed roofing contractor to perform the directed corrective work. 11. Complainant failed to inform Respondent of her selection of an alternative roofing contractor or of her alleged inability to find an alternative roofing contractor. 12. Complainant failed to allow Respondent a reasonable opportunity to comply with the terms of the Registrar’s April 5, 2011 Order. 13. Complainant’s failure to select an alternative roofing contractor to comply with the terms of the Registrar’s April 5, 2011 Order, failure to respond to Respondent’s repeated written attempts to obtain contact information for Complainant’s selected alternative roofing contractor, and failure to notify Respondent of her alleged inability to find an alternative licensed contractor to perform the directed corrective work are found to constitute an unreasonable denial of access in this matter. 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 this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Complainant failed to select an alternative roofing contractor and failed to inform Respondent of the selection, failed to allow Respondent an opportunity to pay for the alternative contractor’s services, and failed to allow Respondent an opportunity to fully comply with the terms of the Registrar’s April 5, 2011 Order. This tribunal concludes that Complainant actions constitute an unreasonable interference with Respondent’s attempts at compliance with the terms of the Registrar’s April 5, 2011 Order. RECOMMENDed order In view of the foregoing, it is recommended that this matter be closed and that Complainant be precluded from proceeding with her claim for damages from the Residential Contractors’ Recovery Fund. 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 40 days from the date of the certification. Done this day, May 16, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] February 10, 2012 Order Setting Compliance Hearing at page 2, lines 11 through 25. [2] See Exhibit No. C-2 Respondent’s letter of May 9, 2011. [3] See Exhibit No. C-6 Respondent’s letter of July 22, 2011. [4] See Exhibit No. C-7 Respondent’s letter of August 11, 2011.

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