ALJDEC decisions subject to certification as final

2011A-2034-ROC · Registrar of Contractors · 2011-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 2011 APPEARANCES: Coolidge Condominiums Home Owners Association was represented by its authorized representative, Lillian Guzman. Arizona Vocational Enterprises, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Arizona Vocational Enterprises, Inc. (“Respondent”) is the holder of License No. 104418, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. In June 2009, Coolidge Condominiums Home Owners Association (“Complainant”) entered into a contract with Respondent for the repair, sealing, and painting of three buildings located at 729 W. Coolidge Street, Phoenix, Arizona. 3. On April 5, 2011, Complainant filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2011-2034. According to Complainant’s Complaint, Respondent last performed work on the subject project on June 2, 2009. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view the alleged deficient workmanship on April 26, 2011. As a result of the jobsite inspection, Inspector Alyea issued a Corrective Work Order dated May 12, 2011, that directed Respondent to timely comply with the written directive. However, the Corrective Work Order contained the advisement that Respondent’s license #104418 was suspended for lack of bond on November 23, 2008, and that Respondent could not do or sub- contract the corrective work until the suspension was lifted. 5. As noted in the Corrective Work Order, Respondent contracted and performed work while its contracting license was suspended. 6. The Registrar issued a Citation and Complaint in Case No. 2011-2034 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, (15), (18), and (23). 7. The Registrar forwarded Case No. 2011-2034 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing in Case No. 2011-2034 that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 9. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 10. The parties’ June 11, 2009 written contract lists Thomas Jones in the letterhead, together with Respondent contracting license number “R.O.C. 104418.” 11. In its Answer to the Citation and Complaint, Respondent acknowledges being the responsible contractor for the subject project. 12. Inspector Alyea performed a prehearing jobsite inspection on October 18, 2011. Inspector Alyea testified at hearing that Respondent’s deficient workmanship has not been remediated and that the workmanship has further deteriorated. 13. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 104418 expired on October 1, 2011. Prior to the expiration of its contracting license, Respondent’s license had been suspended by operation for lack of bond since November 23, 2008, which is the date that the bond was canceled. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the expiration of Respondent’s contracting license does not deprive the Registrar to impose discipline against that license for proven statutory and/or regulatory violations in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s Corrective Work Order. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108 as charged in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship is identified in the Registrar’s Corrective Work Order. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (15), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list its name in the parties’ contract and other documentation. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (18), as charged in the Citation and Complaint issued by the Registrar. Respondent contracted in this matter while its contracting license was suspended by operation of law for lack of bond. RECOMMENDED ORDER Respondent’s License No. 104418 shall be revoked on the effective date of the Order entered in Case No. 2011-2034. If Respondent provides the Registrar with written proof that Respondent concluded a mutually acceptable financial settlement with Complainant in this matter, and the Registrar accepts such proof, then the above-provided license revocation shall not take place, but instead that Respondent’s contracting license shall be suspended for a period of 30 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2011-2034. In addition to the above-provided disciplinary penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-2034 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, was defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided disciplinary penalties and civil penalty, Respondent shall pay the sum of $1,000.00 to the Registrar by way of an additional civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid additional civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-2034 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, was defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, November 7, 2011.

/s/ Brian BrendanTully 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