ALJDEC decisions subject to certification as final

2010A-643736-ROC-com · Registrar of Contractors · 2011-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Darren Cook. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms conditions of the September 15, 2010 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 Order Setting Compliance Hearing provides, in pertinent part, as follows: On September 15, 2010, the Registrar issued an Order in this matter providing that on the effective date of the Order Respondent’s K-39.217429-D License would be suspended and would remain suspended until Respondent provided the Registrar with written proof that it had fully complied with (1) the terms and conditions of the written Corrective Work Order issued in this matter by repairing Complainant’s vent flue to meet local building code requirements and (2) the requirements of A.R.S. § 32-1124(B). If prior to the effective date of the Order, Respondent fully complied with the Corrective Work Order to repair Complainant’s vent flue to meet local code requirements and provided documentation of such work along with documentation of its compliance with A.R.S. § 32-1124(B), then its K-39.217429- D License would not be suspended. Instead, Respondent’s License would be placed on probation for sixty (60) days. The period of probation was also to be imposed if the Registrar ever lifted the suspension due to compliance with the terms of the Order.

The effective date of the Order was October 25, 2010. On or about September 29, 2010, Respondent submitted written correspondence with the Registrar maintaining, among other things, that “Per the recommendation [O]rder we are submitting documents to show compliance....”

On or about October 19, 2010, Complainant submitted written correspondence with the Registrar maintaining, among other things, that the required corrective work had not been fully completed.

Upon review and consideration of Respondent’s Notice of Compliance, Complainant’s Response, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Flagstaff area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of the Registrar’s September 15, 2010 Order issued in this matter. If it is determined that Respondent has failed to fully comply with the Registrar’s written directives, absent unreasonable interference or denial of access by Complainant, then Respondent’s K-39.217429-D License shall be subject to the immediate imposition of discipline. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives in their attempt to comply with the Registrar’s September 15th Order, then Respondent’s license shall not be suspended, but instead placed on probation for a period of sixty (60) days, and the matter shall be closed as Respondent having fully complied with the terms of the Registrar’s Order.

2. Credible testimony and evidence established that the Respondent is now in full compliance with the requirements of A.R.S. § 32-1124 (B) (display of license). 3. Undisputed credible testimony and evidence established that the Complainant’s vent flu had been corrected by others at the Complainant’s expense prior to the administrative hearing that was held on July 22, 2010, and that the Complainant’s request for payment the cost of the correction of the vent flu, estimated at $89.00, is included in the sum of $1,850.58 that the Complainant is claiming as monetary damages in this matter. 4. Credible testimony and evidence established that the Respondent’s dispute regarding the Complainant’s claim for monetary damages is being made in good faith. 5. Undisputed credible testimony and evidence established that the September 15, 2010 Order of the Registrar does not require the Respondent to pay money damages to the Complainant. 6. The parties’ good faith money dispute will necessarily involve a monetary adjudication and must be resolved, if at all, in a civil court of competent jurisdiction. 7. Credible testimony and evidence, presented at hearing, established that the Respondent has fully complied with the terms of the September 15, 2010 Order of the Registrar of Contractors. CONCLUSIONS OF LAW 1. Once the Registrar issues an Order concluding that the Respondent is in violation of the provisions of A.R.S. § 32-1154 (A) and providing for discipline to be imposed upon the Respondent’s license for failure to comply with the terms of the Order, then the burden of proof shifts to the Respondent to establish compliance with the terms of the Registrar’s Order by a preponderance of the evidence when a question arises as to whether or not the terms of the Order have been fully complied with. A.A.C. R2-19-119 (B). 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). Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish that the Respondent has fully complied with the terms of the September 15, 2010 Order of the Registrar.

RECOMMENDed Order on compliance hearing In view of the foregoing, it is recommended, in accordance with the terms of the Registrar’s Order of September 15, 2010, that the Respondent’s License be placed on probation for a period of sixty (60) days and that the matter 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 40 days from the date of the certification.

Done this day, October 28, 2011.

/s/ M. Douglas 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