ALJDEC decisions subject to certification as final

2011A-2646-ROC · Registrar of Contractors · 2011-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 2011, at 8:00 a.m. APPEARANCES: Neither party appeared. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In June 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC208390, Class K-61 for dual carpentry, remodeling, and repairs to First Class Custom Cabinetry, L.L.C. (“Respondent”). Respondent’s address of record is 21411 North 11th Avenue, Suite 7, Phoenix, Arizona 85027-2835. 2. On or about May 5, 2011, the Registrar received a complaint against Respondent from Rita Urfer, on behalf of Rita Urfer Interior Design (“Complainant”), regarding Respondent’s performance of its contract with Complainant to construct custom cabinetry at a house that Complainant was remodeling at 3951 East Paradise View Drive, Paradise Valley, Arizona. According to the complaint, Complainant paid Respondent $6,000.00 of the $10,000.00 contract price for the cabinetry. The mailing address that Complainant provided on the complaint form was 4106 East Cortez Street, Phoenix, Arizona 85028. 3. The Registrar’s inspector, Jeff Fleetham, performed a jobsite inspection. On August 11, 2011, Inspector Fleetham, on behalf of the Registrar, issued a Corrective Work Order that required Respondent to correct certain items of complaint by appropriate means. 4. Complainant subsequently requested a hearing. On July 29, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108,[1] (10),[2] and (23).[3] 5. Respondent filed a timely written answer to the Registrar’s Citation and Complaint, denying any violations. 6. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 7. On September 6, 2011, the Registrar issued a Notice of Hearing, setting a hearing on October 19, 2011, at 8:00 a.m. 8. The Registrar mailed copies of the Notice of Hearing to Complainant at the address on her complaint and to Respondent at its address of record. 9. On or about October 4, 2011, Complainant moved to continue the hearing until after February 1, 2012, because her general contractor would be out of the country on October 19, 2011, she was leaving for a two-week trip to India on October 20, 2011, and when she returned from her trip to India, she was planning to go to Illinois to assist her father in his transition from a lengthy hospital stay to his home. Complainant also stated that she did not have a monetary dispute with Respondent because she had used some the monies that she owed to it under the contract to pay other contractors to repair its work and had credited the balance to her client, the owner of the remodeling project. 10. On October 13, 2011, the Administrative Law Judge issued an order denying Complainant’s motion to continue, but allowing her to present her general contractor’s testimony telephonically. The Administrative Law Judge also informed the parties as follows: Because construction is not a perfect science, the Registrar usually requires that a licensee be afforded an opportunity to correct its work before the Registrar disciplines its license, unless the licensee’s license status or health or safety issues justify the [C]omplainant’s resort to self-help. Respondent’s license is current and in good standing, and commercial exigency does not generally justify self-help. The parties should come to the hearing prepared to address the issue of whether this administrative complaint is the proper forum for Complainant’s claims against Respondent under the circumstances set forth in her motion to continue.

The OAH sent copies of the order denying the continuance to Complainant at the address on her complaint and to Respondent at its address of record. 11. Inspector Fleetham appeared at the hearing to testify. 12. Although the start of the hearing was delayed fifteen minutes to allow both parties additional travel time, neither party asked to appear telephonically, appeared personally or through an authorized representative or attorney, or requested that the start of the hearing be further delayed. Complainant did not present any evidence to establish the allegations in her complaint to the Registrar against Respondent. 13. The record of the OAH does not contain any evidence that the parties settled their dispute. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Complainant at the address that she provided was reasonable and it appears that she actually received notice of the hearing.[4] 2. Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statutes by a preponderance of the evidence.[5] 3. Complainant by failing to appear at the duly noticed hearing has not borne her burden to establish cause for the Registrar to discipline Respondent’s contractor’s license under the charged statutes. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the complaint in Case No. 2011-2646 against Respondent First Class Custom Cabinetry, L.L.C.’s License No. ROC208390 be dismissed. 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 8, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]iding or abetting a licensed or unlicensed person to evade this chapter, knowingly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person with intent to evade this chapter.” [3] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [4] See A.R.S. §§ 41-1092.04 and 41-1092.05(D). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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