ALJDEC decisions subject to certification as final

2011A-3060-ROC-com · Registrar of Contractors · 2013-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2013 APPEARANCES: Marty Ceccarelli appeared on his her own behalf. James Glenn McAnally dba American Quality Contractors failed to appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. C-61.192940-R to James Glenn McAnally dba American Quality Contractors (“Respondent”). Marty Ceccarelli (“Complainant”) contracted with Respondent to apply an epoxy coating to the garage floor at his residence of 9275 East Happy Valley Road, Scottsdale, Arizona. Complainant filed a Complaint to the Registrar against Respondent alleging that the work completed was not acceptable. On April 6, 2011, Ted Gerold, the assigned inspector, issued a Corrective Work Order requiring as follows: “This contractor is to properly coat all garage floor areas[.] Also this contractor is to properly remove all construction debris from garage baseboards, walls, doors, and driveway pavers.” On May 26, 2011, the Registrar issued a Citation and Complaint that charged Respondent with possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). On July 1, 2011, Respondent filed a Petition for Chapter 7 Bankruptcy Protection in the United States Bankruptcy Court Case No. 2:11-bk-19179- SSC. On July 25, 2011, after Respondent failed to file a timely written answer, the Registrar issued a Default Decision and Order finding that, pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission to the charges contained in the Citation and Complaint. On October 3, 2011, the Registrar closed the matter due to Respondent’s pending bankruptcy case. The Registrar also quashed the Default Decision and Order issued on July 25, 2011, because it was issued in violation of the automatic stay. On or about January 10, 2012, Complainant obtained an Order Granting Relief from the Automatic Stay from the United States Bankruptcy Court. On August 14, 2012, the Registrar issued a Default Decision and Order finding that, pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission to the charges contained in the Citation and Complaint. The January 30, 2013 Order Setting Compliance Hearing provided in pertinent part as follows: On August 14, 2012, the Registrar issued a Default Decision and Order providing that Respondent’s C-61.192940-R License would be suspended on the effective date of the Order and remain suspended until Respondent submitted written proof to the Registrar that it had rectified the issues involved and detailed in the Complaint and the Corrective Work Order. If Respondent submitted such written proof of compliance to the Registrar, and the Registrar accepted such proof, on or before the Order’s effective date, then Respondent’s C-61.192940-R License would not be suspended and the matter would be closed. The Order had an effective date of September 23, 2012.

On October 31, 2012, the Registrar issued an Order Denying Petition for Rehearing providing that the Registrar’s August 14, 2012 Default Decision and Order would in [sic] full force and effect on December 10, 2012, unless a Stay Order was secured from Superior Court.

On or about December 6, 2012, Respondent submitted written correspondence in this matter with the Registrar alleging that Complainant had denied Respondent access to comply with the Registrar’s directives.

On or about December 14, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “[t]he floor has not been touched since [Respondent] abandoned the job. No repairs have been done and [Complainant] ha[s] not received one letter from [Respondent].”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Complainant has denied Respondent access to comply with the Registrar’s directives or whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference by Complainant(s).

If it is determined that Respondent failed to comply with the terms of the Registrar’s August 14, 2012 Default Decision and Order, absent unreasonable interference by Complainant, Respondent’s C- 61.192940-R License shall be subject to the immediately [sic] imposition of discipline.

If it is determined that Complainant unreasonable [sic] interfered with Respondent’s attempts at compliance or denied Respondent the ability to comply with the terms of the August 14, 2012 Default Decision and Order, then no discipline shall be imposed upon Respondent’s C-61.192940-R License and this matter shall be closed.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

Alterations in original.

Inspector Gerold conducted an onsite pre-hearing compliance inspection at Complainant’s residence on April 8, 2013, with Complainant and Respondent in attendance. Inspector Gerold testified that he observed that the garage looked exactly the way it looked at the initial inspection. It was Inspector Gerold’s opinion that no corrective work had been performed to the garage flooring, baseboards, walls, doors, or driveway pavers and that Respondent had failed to comply with the terms of the Registrar’s directive. Inspector Gerold testified that it was possible someone had done some sanding to the epoxy flooring, but that no repair attempts had been made by Complainant or another contractor. Complainant testified that he did not deny Respondent access to the garage at any time. Complainant stated he had never received any contact from Respondent to set up a time to complete the corrective work from the time the initial Corrective Work Order was issued. Complainant’s undisputed testimony is found to be credible. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 9, 2013. Such prior license record reflects that License No. C-61.192940-R has been suspended since March 11, 2013, for non-renewal. 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. There was no dispute that Respondent did not perform any corrective action on Complainant’s garage floor. There was no credible evidence of an unreasonable denial of access by Complainant. This Tribunal concludes that Respondent failed to fully comply with the terms of the August 14, 2012 Default Decision and Order issued by the Registrar of Contractors. RECOMMENDed order Based on the foregoing, it is recommended that the Registrar immediately revoke Respondent James Glenn McAnally dba American Quality Contractors’ License No. C-61.192940-R. 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, April 9, 2013.

/s/ Tammy L. Eigenheer 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