ALJDEC decisions subject to certification as final

2011A-1994-ROC · Registrar of Contractors · 2012-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared on his own behalf. Respondent appeared through its authorized representative, Eric Eugene Linden. 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. Specialist Plumbing LLC (“Specialist”) is the holder of License No. K- 37.157675-D issued by the Registrar of Contractors. 2. This is a residential matter in which Complainant suffered water damage at a rental residence owned by Complainant located at 6849 E. Nicaragua Drive, Tucson Arizona. Complainant contacted and entered into a construction agreement with Specialist for the performance of plumbing and furnace work at the said rental residence.[1] 3. When Specialist declined to return to the rental residence and properly complete the construction project and failed to provide requested invoices, Complainant filed a formal Complaint against Specialist with the Registrar of Contractors.[2] 4. The parties were unable to resolve their dispute, and a Citation was issued in the above-entitled matter based on the formal Complaint. 5. Specialist failed to file a required written Answer to the Citation and Complaint, and on September 20, 2011, a Default Decision and Order was issued. 6. The September 20, 2011 Default Decision and Order provides, in pertinent part, as follows: IT IS ORDERED suspending Respondent’s license on the effective date of this Order (40 days after the mailing date, shown below), until the Registrar receives proof that Respondent has appropriately rectified the issues involved and detailed in the Complaint. If Respondent properly corrects the issues involved and detailed in the Complaint on or before the effective date of this Order, then Respondent’s license shall not be suspended, and this Citation and Complaint shall be closed.

Regarding the discipline ordered above, this Order is self- operative: Respondent must file with this Agency written confirmation that Respondent has properly complied with the requirements of this Order on or before October 30th, 2011. Based on this Decision, the Order shall become effective on October 30th, 2011. Any request for rehearing must be filed on or before October 25th, 2011. Any appeal to the Superior Court must be filed and a Stay Order secured on or before the effective date set forth above.

If this Order provides for corrective work to be performed, the Respondent is advised that such work must be performed in a workmanlike manner and the Registrar notified of its completion in writing on or before the effective date of this Order. The Respondent is also advised that no work may be performed by the Respondent that is outside the scope of the Respondent's license(s), but as a result of this Order such work may be subcontracted to properly licensed contractors.

The Respondent is further advised that if its license is currently suspended for administrative reasons (lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout or other reasons under A.R.S. §32-1124(F)), Respondent may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of its license has been lifted. If Respondent’s license remains suspended for administrative reasons or is revoked, expired, canceled, inactive or invalid, Respondent may not contract in any manner and may satisfy the corrective work provisions of this Order only by paying a properly licensed contractor hired by the Complainant to perform the corrective work or by reaching a financial settlement with the Complainant.

The Complainant is advised that any unreasonable denial of access to the Respondent or the Respondent's proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complainant may be denied access to the Contractors' Residential Recovery Fund, even if otherwise eligible.

7. On or about October 13, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent filed a timely Answer and a rehearing was warranted. Attached was a copy of a written Answer with a Registrar’s Legal Department’s date stamp of October 13, 2011. The Registrar treated this submission as a timely Request for Rehearing.[3] 8. On that same day, Respondent submitted a document entitled “Written Compliance” providing, among other things, that because the allegedly deficient work was completed by an alternative contractor prior to the job site inspection in this matter, there is no work for Respondent to perform.[4] 9. On or about November 17, 2011, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that he had to have the work repaired and replaced as there were tenants living in the residence and that they could not be without a kitchen.[5] 10. After review, the Registrar issued an Order Denying Request for Rehearing/Order Setting Compliance Hearing. 11. The Order Denying Request For Rehearing/Order Setting Compliance Hearing provides, in pertinent part, as follows: Upon review and consideration of Respondent’s Request for Rehearing and Complainant’s Response thereto, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Rehearing be DENIED for the reason that there is no sufficient showing of any compelling legal or factual basis for the granting of any rehearing and for the further reason that the findings, conclusions and recommendations contained in the Registrar’s September 20, 2011 Default Decision and Order are fully supported by the record.

IT IS FURTHER ORDERED that this matter be set for a Compliance Hearing in the expedited course of docketing in the Tucson area to determine whether or not Complainant unreasonably interfered with Respondent’s attempts to comply with the directives set forth in the September 20, 2011 Default Decision and Order. If it is determined that Complainant unreasonably interfered with Respondent’s attempts at compliance, then no discipline shall be imposed against Respondent’s License, and this matter shall be closed. If it is determined that Respondent failed to comply with the terms of the Default Decision and Order, absent unreasonable interference by Complainant, then Respondent’s License shall be immediately suspended in accordance with the terms of the Default Decision and Order.

Note: Because this matter involved an allegation of A.R.S. § 32- 1154 (A) (1), and not Subsection (A) (3), namely R4-9-108, or Subsection (A) (2), A.R.S. § 32-1155 (C) does not apply. Thus, the mere fact that Complainant had the work repaired and replaced by an alternative contractor does not obviate the fact that it has been established that Respondent violated A.R.S. § 32-1154 (A) (1) and (17). Further, nothing in the Default Decision and Order provided that the only way Respondent could remedy the violations was to perform corrective work. Respondent were [sic] required to “rectify” the issues involved and detailed in the Complaint, which could include the parties reaching a monetary settlement.[6]

12. Complainant’s father, Jack Ragin (hereinafter “Mr. Ragin”), testified that there had been no contact with Respondent after the Default Decision and Order was issued.[7] 13. Complainant testified that Specialist had failed to comply with the terms of the September 20, 2011 Default Decision and Order. Complainant acknowledged receiving a package of invoices on August 9, 2011,[8] during a small claims court action between Mr. Ragin and Eric Eugene Linden. Complainant stated that the invoices were unacceptable to his insurance company and of no use to him.[9] 14. The small claims court case between Mr. Linden and Mr. Ragin was dismissed without prejudice on August 9, 2011, on the basis that the case was improperly filed and should have been filed as a complaint by Complainant against Specialist not as a complaint by Mr. Ragin against Mr. Linden.[10] 15. Complainant stated that he and a friend completed the abandoned construction project at a cost of approximately $900.00 and that no further corrective action is required in this matter. Complainant acknowledged that he had no receipts with him for the alleged expenditures.[11] 16. Mr. Linden testified that Specialist had complied with the provisions of the September 20, 2011 Default Decision and Order by providing the invoices that Complainant requested and by offering to waive the amount of money Specialist asserts is due and owing to it from Complainant.[12] 17. There was no dispute that the small claims court action between Mr. Ragin and Mr. Linden occurred on August 9, 2011, and that the Default Decision and Order was issued on September 20, 2011. 18. There was no dispute that the parties have not entered into any type of financial settlement in this matter. 19. 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. 20. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on June 27, 2012. Such prior license record reflects that License No. K-37.157675-D of Specialist Plumbing LLC is current. 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. The credible evidence of record supported findings which establish that Specialist’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the September 20, 2011 Default Decision and Order. On the contrary, credible evidence of record supported findings which establish that Specialist failed to comply with the terms of the September 20, 2011 Default Decision and Order and that Specialist’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the Default Decision and Order. This tribunal concludes that Specialist has failed to comply with the terms of the September 20, 2011 Default Decision and Order. RECOMMENDed order In view of the foregoing, it is recommended that License No: K- 37.157675-D of Specialist Plumbing LLC be actively suspended for a period of twenty (20) days and then placed on disciplinary probation for a period of ninety (90) days. 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, July 2, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Complaint Form received by Registrar of Contractors on April 1, 2011. [2] June 29, 2011, Citation and Complaint. [3] Document entitled “Response to Written Citation Error in the Court,” stamped, “rec’d legal 10/13/11.” [4] Document entitled “Written Compliance,” stamped, “rec’d legal, 10/13/11.” [5] 11/9/11 letter of Complainant stamped “rec’d legal 11/17/11.” [6] January 24, 2011, Order Denying Request for Rehearing/Order Setting Compliance Hearing. [7] 6/12/12 Hearing Record (hereinafter”H.R.”) at 29:41-34:38. [8] Exhibit No. R-6. [9] H.R. at 23:53-28:00. [10] Exhibit No. C-5 (Order for Case No. CV 11-006658). [11] H.R. at 40:31-40:58. [12] H.R. at 42:34; 51:11-52:23.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826