ALJDEC decisions subject to certification as final

2011A-3724-ROC-com · Registrar of Contractors · 2013-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2013, at 8:00 a.m. APPEARANCES: William Richards and Michael Sumner (hereinafter “Complainants”) appeared through their attorney, Evan L. Thompson, Esq., Thompson Krone Gibson, PLC. Contreras Building and Management LLC (hereinafter “Contreras”) appeared through its attorney, Sean E. Brearcliffe, Esq., Rusing & Lopez PLLC. 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. The Order Granting Respondent’s Request for Extension of Time to Comply/Order Setting Compliance Hearing provided, in pertinent part, as follows: On or about April 30, 2012 Counsel for Respondent submitted a Certification of Completion of Corrective Action; Request for Extension of Time for Completion of Final Tasks in this matter with the Registrar maintaining, among other things, that Respondent “submits its Notice of Completion of the corrective action . . . in conjunction with a request for additional time in which to complete remaining items due to delays in material ordering and limitation of access provided by Complainants. . . . The Complainants, by limiting the days and times in which [Respondent] could have access to the home, by asking for upgraded doors, and by unreasonably demanding replacement of items instead of the repairs as ordered by the Registrar . . . have caused the delays here.”

On or about May 9, 2012, Counsel for Respondent submitted a Supplement to Certification of Completion of Corrective Action; Request for Extension of Time for Completion of Final Tasks in this matter with the Registrar maintaining, among other things, that “the subcontractor that will be doing the installation of the upgraded doors will perform that work (a 10 minute job) when the new and upgraded doors arrive and are installed.”

On or about May 11, 2012, Complainants submitted a Request for Compliance Hearing and Response to Respondent’s Request for More Time in this matter with the Registrar providing, among other things, that Complainants “refute the claims of interference and denial of access. Respondent has continually failed to appear when scheduled as well as failed to proceed with the corrective work as ordered in compliance with the Registrar’s and industry standards. Complainants have and will agree to extend the deadline for compliance regarding the ordering and shipping of the new doors only. Complainants again request a [C]ompliance [H]earing and ask the Registrar to perform a [C]ompliance [I]nspection in accordance with its rules, policies and procedures.”

On or about May 22, 2012, Complainants submitted additional written correspondence in this matter with the Registrar providing that Complainants “request a [C]ompliance [H]earing and [I]nspection. Respondent has failed to show up when scheduled and has not followed workmanship standards. More damage to [Complainants’] property has resulted from the poor workmanship and lack of oversight by [Respondent]. [Complainants] still agree to extend the time for the doors and window[s] that were ordered.”

On or about May 25, 2012, Complainants submitted additional written correspondence in this matter providing, among other things, that “[p]oor workmanship, lack of oversight and damage to our property has been a consistent theme with [Respondent].” Complainants reiterated their request for Compliance Inspection and Compliance Hearing.

On or about May 31, 2012, Counsel for Respondent submitted a Motion to Extend Date for Compliance with Corrective Work Order maintaining, among other things, that “upgraded doors were ordered by [Complainants] and the installation of same cannot be completed until the ordered doors arrive, and other finish work related to the installation of same cannot similarly be completed until then. The doors are expected to arrive on or about June 8, 2012, and thereafter can be installed if [Complainants] provide access.”

On or about June 4, 2012, Complainants submitted written correspondence in this matter with the Registrar providing, among other things, that Respondent was provided access to the residence for three (3) days, but only worked on one (1) day.” Complainants further provide this project was to be completed within 100 days, but even after three and a half (3 ½) years, the job is still incomplete.

On or about June 14, 2012, Complainants submitted written correspondence in this matter with the Registrar providing, among other things, that Complainants “agree to an extension of time until June 30, 2012 for installation of the ordered doors and work directly relating to the aforementioned installation only . . . . [C]omplainants have been informed . . . that the doors arrived a while ago and are all ready to be installed . . . . Respondent has not contacted [Complainants] to set up times for the installation.”

On or about July 2, 2012, Respondent submitted a Supplemental Motion to Extend Date for Compliance with Corrective Work Order maintaining, among other things, that Complainants refused installation of the upgraded doors on June 6, 2012, due to a cosmetics issue with the door jamb. The installer ordered a new door jamb and such should arrive in the month of July. Thus, Respondent requested an extension of time to comply with the terms of the March 21, 2012 Order until July 31, 2012.

Upon review and consideration, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Extension of Time be GRANTED and that Respondent shall be given until August 15, 2012 to comply with the terms of the Registrar’s March 21, 2012 Order. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the normal course of docketing in the Tucson area, but not to occur prior to August 15, 2012. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Complainants have unreasonably 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 Complainants. The parties may further offer evidence and testimony regarding whether or not the work performed by Respondent fully complies with the written Corrective Work Order issued in this matter.

If it is determined that Respondent failed to comply with the Registrar’s directives absent unreasonable denial of access by Complainants, then Respondent’s KB-2.163593-D License shall be subject to an immediate imposition of discipline. If it is determined that Respondent only failed to comply with the Registrar’s directives due to unreasonable interference by Complainants, Respondent’s KB-2.163593-D License shall not be disciplined, this matter shall be closed and Complainants will not be able to file a claim with the Residential Contractor’s Recovery Fund, even if otherwise eligible.

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.

2. The assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), testified that he conducted a pre-hearing Compliance Inspection on January 22, 2013. Inspector Grochocki stated that he inspected each of the items on the Corrective Work Order and observed that numerous items set forth in the Corrective Work Order had not been fully corrected. Inspector Grochocki testified that Item Nos. 1, 16, 18, 27, 28, 31, 33, 50, 51, 61, 72, 73, 81, 88, and 101 of the Corrective Work Order had not been corrected. Inspector Grochocki opined that Contreras had failed to fully comply with the terms of the Registrar’s March 21, 2012 Order.[1] 3. Inspector Grochocki’s testimony is found to be credible. 4. William Richards (hereinafter “Mr. Richards”) testified that there was no agreement with Contreras to delete the pocket door in the bathroom and that Complainants wanted the toilet relocated to the proper location. Mr. Richards stated that numerous items of the Corrective Work Order had not been corrected by Contreras.[2] 5. Contreras’ qualifying party, Tina Maria Contreras (hereinafter “Ms. Contreras”), testified that she realized that it was Contreras’ responsibility to determine the appropriate method of correction for all of the items set forth in the Corrective Work Order. Ms. Contreras acknowledged that all of the items set forth in the Corrective Work Order had not been fully corrected. Ms. Contreras stated that she attempted to review the items listed in the Corrective Work Order and that Michael Sumner did not want to conduct the review. Ms. Contreras acknowledged that she was able to review each item set forth in the Corrective Work Order. Ms. Contreras testified that it was difficult to gain access to Complainants’ residence. Ms. Contreras stated that Complainants restricted the hours and days that they would allow Contreras into their residence. Ms. Contreras stated that Complainants continually asked for free upgrades.[3] 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 credible evidence that Complainants denied reasonable access to Contreras. Contreras had access to Complainants’ residence on repeated occasions and submitted a notice of substantial compliance to the Registrar. 4. Credible testimony and evidence established that Item Nos. 1, 16, 18, 27, 28, 31, 33, 50, 51, 61, 72, 73, 81, 88, and 101 of the Corrective Work Order had not been fully corrected by Contreras. This Tribunal concludes that Contreras failed to fully comply with the terms of the Registrar’s March 21, 2012 Order. 5. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities that reduce, eliminate, or terminate disciplinary action against the contractor’s license. RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 2.163593-D of Contreras shall be immediately suspended until the Registrar of Contractors receives and accepts written proof that Contreras has fully complied with the terms of Registrar’s March 21, 2012 Order.

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, February 6, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/23/13 Hearing Record (hereinafter “H.R.”) at 28:25-1:00:54. [2] H.R. at 1:01:41-2:06:20. [3] H.R. at 2:07:14-2:59:33.

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