ALJDEC decisions subject to certification as final

2011A-1090-ROC-com · Registrar of Contractors · 2012-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2012

APPEARANCES: Complainants appeared, represented by their attorney Alexander Evans Moorhead, Esq.; Respondent was represented by LLC Member and Qualifying Party Brent Monroe.

WITNESSES: Scott Deering, ROC Inspector Jerry Boerwinkle, carpet repairer Brent Monroe Jill Duckett

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter is a compliance hearing to determine whether Respondent has complied with an Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Order adopted an Administrative Law Judge Decision and required Respondent to perform corrective work as described in the ALJ Decision. Respondent alleges that it attempted to comply but was not allowed reasonable access to perform the required corrective work. Complainants deny the allegation that there was a lack of reasonable access and also affirmatively assert that Respondent is not in compliance because 1) workmanship problems remain with the door trim; 2) the work is unfinished with regard to uninstalled doors and door hardware; and 3) Respondent used an unlicensed subcontractor to perform carpet repair. Respondent’s position is that the door trim meets standards, that the unfinished work is a result of the lack of reasonable access, and that it did not use an unlawful subcontractor. This tribunal entered the full complaint file received from the Registrar into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Order. In addition, Exhibits 2, 3, G, H, L, M, and Q were admitted into the record. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent is not in compliance. Procedural Background Following an administrative hearing, the Registrar issued a January 12, 2012 Order that gave Respondent until February 21, 2012, to perform corrective work or have its license suspended until Respondent showed that it is in compliance with the Registrar’s Order. The Registrar’s Order adopted the Administrative Law Judge’s Recommended Order that stated: IT IS RECOMMENDED that license B-3.203111-R, held by Sun City Restoration, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the items listed in Findings of Fact 4 and 5 have been corrected by appropriate means and the Registrar of Contractors accepts such written proof.

Finding of Fact 4 concerned a junction box that is not at issue in the compliance hearing. Finding of Fact 5 reads as follows: The other CWO items relate to doors, carpet, electrical outlets, a smoke detector, and door casings. Again, Complainants have identified the corrective work that needs to be done:

– Replace pantry & master bedroom doors

– Stretch and secure new carpet installed in office, living room and master bedroom

– Replace receptacles and switches in 2 guest bedrooms

– Add outlet on patio and one in office

– Move smoke detector in hallway

– Soften casing edges and refinish with “varnish” specified by Complainants

This tribunal finds that the corrective work listed above is necessary and that Respondent is responsible for completing it, but has not yet done so.

According to Complainants, only the workmanship on items 2 and 7 are at issue in the compliance hearing. After a denial of a Motion for Rehearing, Respondent was given until July 29, 2012, to complete the work and show compliance. On July 25, 2012, Respondent filed a written statement with the Registrar stating that Respondent had completed all work. Respondent requested a compliance inspection and vaguely mentioned a scheduling dispute with Complainants. At hearing, Respondent clarified that this was an allegation of refusal to provide access. Complainants responded on August 3, 2012, stating that they were not denying access to Respondent and that the work was not completed. The Registrar then issued an order setting the matter for compliance hearing. The Registrar’s Order Setting Compliance Hearing states that the compliance hearing is to determine “whether or not Respondent has complied with the January 12, 2012, Order, absent unreasonable interference by Complainants.” FINDINGS OF FACT 1. Respondent is the holder of License No: B-3.203111-R, a general residential remodeling and repair contracting license issued by the Registrar. Brent Allen Monroe is Respondent’s Qualifying Party. 2. As noted above, Respondent was required to perform corrective work under the terms of the January 12, 2012 Order. Moreover, Respondent was to perform that work and provide written proof of compliance to the Registrar on or before July 29, 2012 in order to avoid suspension. E-mail correspondence between the parties shows that Respondent contacted Complainants on July 2, 2012, asking Complainants to “provide us with a couple of good days that work for you so that we can get this scheduled.”[1] 3. Complainants live in Iowa during the summer months. They quite reasonably believed that Respondent was asking for dates to perform the corrective work. They replied that July 9 and 10 were good.[2] Complainant Jill Duckett then travelled to Arizona by airplane and was present on July 9. 4. On July 9, 2012, Respondent arrived and did a “walkthrough” with Complainant Jill Duckett.[3] Much to her surprise, Respondent did no work that day. Complainant Jill Duckett had a return ticket for July 11, 2012. 5. On July 10, 2012, Respondent did some of the corrective work, including the carpet and work on the door casings.[4] An electrician was brought in to assess the scope of the electrical work and that work was scheduled for July 12, 2012. Complainant Jill Duckett agreed to delay her return flight and changed it to July 18, 2012.[5] 6. On July 11, 2012, Respondent worked on the door casings.[6] 7. On July 12, 2012, the electrical work was completed and Respondent worked on the door casings. Respondent told Complainant Jill Duckett that the replacement doors would be installed “next week.”[7] 8. On July 13, 2012, the county building inspector inspected and passed the electrical work. Respondent worked on the door casings and removed the pantry and master bedroom doors to take them offsite and match them with new doors. Complainant Jill Duckett was not comfortable with this but could not persuade Respondent that it was not necessary. Respondent took the doors away.[8] 9. On Monday, July 16, 2012, Respondent worked on the door casings and believed they were all corrected. Complainant Jill Duckett did not agree.[9] 10. On July 17, 2012, Respondent was at the house doing work on a different complaint. The replacement doors were not installed and it was the last day Complainant Jill Duckett was to be there. Respondent told her that roofing work that was to be done for a different complaint was scheduled for July 18. Complainant Jill Duckett again changed her travel plans.[10] 11. On July 18, 2012, Complainant Jill Duckett waited at the house all day and nobody showed to do any work until after 7:00 PM, when the roof work was completed.[11] 12. Complainant Jill Duckett stayed in Arizona until July 20, 2012. On the morning of July 20, 2012, both Respondent and Complainant Jill Duckett attended a pretrial conference in civil court.[12] 13. Respondent did not contact Complainants again after July 17, 2012. 14. On November 27, 2012, Inspector Scott Deering performed a pre- hearing inspection. He testified that he found the replacement doors still missing and that the door casings had not been completed. He found the entry door header casing to be too rough and the varnish too thin in some areas on the casings. 15. The evidence shows that Respondent was given reasonable access to perform the corrective work, but failed to do so, leaving the replacement of the doors unfinished and poor workmanship in the areas noted by Inspector Deering.[13] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[14] Further, the standard of proof at hearing is by preponderance of the evidence.[15] Since the January 12, 2012 Order required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with that Order, absent a lack of reasonable access.[16] Respondent has not met that burden. 2. The evidence shows that Respondent was given reasonable access and failed to comply with the January 12, 2012 Order. 3. As noted in the Order Setting Compliance Hearing: “If it is determined that Respondent failed to comply with the terms of the January 12, 2012 Order, absent unreasonable interference by Complainants, Respondent’s B-3.203111-R License shall be subject to the immediate imposition of discipline.” 4. Immediate suspension of the license is warranted. Complainants may make a claim to the Residential Contractors’ Recovery Fund to recover their damages from the lack of compliance. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s B-3.203111-R License shall be immediately suspended and remain suspended until the Registrar lifts the suspension. The Registrar may lift the suspension after a recovery fund claim has been brought and proceeds to a final order pursuant to A.R.S. § 32-1154(F) and A.R.S. § 32-1139(B).

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 the date of that certification.

Done this day, December 18, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit H. [2] Id. [3] Exhibit 2; Exhibit G. [4] Id. [5] Exhibit 3. [6] Exhibit 2; Exhibit G. [7] Id. [8] Id. [9] Id. [10] Id. [11] Exhibit 2. [12] Id. [13] Because the Administrative Law Judge finds that there was no compliance for these reasons, the allegation that Respondent used an unlicensed contractor is not addressed. If Complainants wish to make that complaint, which is not at all clear to the Administrative Law Judge, they may do so within the ROC process for investigating unlicensed contracting. [14] Arizona Administrative Code (A.A.C.) R2-19-119(B). [15] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [16] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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