ALJDEC decisions subject to certification as final

2011A-3920-ROC-com · Registrar of Contractors · 2012-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2012, at 8:00 a.m. APPEARANCES: Jardine and Denise Diamond (hereinafter “Complainants”) appeared through Denise Diamond. Ricardo Larios dba Sunwest Patio Areas and Landscapes (hereinafter “Sunwest”) appeared on his own behalf. 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 Setting Compliance Hearing provided, in pertinent part, as follows: On or about April 2, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “was denied the ability to comply with the [O]rder issued by the [Registrar].” Respondent further provided that on or about March 28, 2012, Respondent and its employees arrived at Complainants’ residence to complete the necessary outstanding work. According to Respondent, Complainant Jardine Diamond insisted that Respondent lower the pavers 4” instead of 2” as ordered by the Registrar. Allegedly, Complainant Jardine Diamond called Complainant Denise Diamond on the phone to discuss the matter, and Complainants informed Respondent that they did not want the work done after all. The Registrar treated this submission as Respondent’s Notice of Denial of Access.

On April 19, 2012, the Registrar sent a copy of Respondent’s Notice of Denial of Access to Complainants, providing Complainants with an opportunity to file a Response thereto.

On or about April 25, 2012, Complainant Denise Diamond submitted written correspondence in this matter with the Registrar providing, among other things, that “Respondent and [Co- Complainant Jardine Diamond] could not come to an agreement regarding the pavers. [Complainants] realize what the building code stipulates, however, [Complainants] wanted the pavers and [gravel] to be level, as they were when first installed.”

Complainant Denise Diamond acknowledges that the building codes only require a 2” separation between the pavers and weep screed, but maintains that Complainants do not feel such a difference would constitute the work meeting minimum workmanship standards. Complainant Denise Diamond indicated that Complainants only disallowed Respondent to perform work on March 28, 2012, because they wanted to verify with the assigned Inspector whether or not all that was required for the work to meet minimum workmanship standards was for the work to also to comply with the applicable building code. After learning from the assigned Inspector that if the work complies with the building codes, it likely also meets minimum workmanship standards, Complainants agree to now provide several dates for Respondent to perform the necessary work at the residence.

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the normal course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Complainants have 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.

If it is determined that Complainants unreasonably interfered with Respondent’s attempts at compliance with the terms of the Registrar’s March 9, 2012 Order, this matter shall be closed and no discipline imposed upon Respondent’s K-21.215669-D License.

If it is determined that Respondent failed to comply with the terms of the Registrar’s March 9, 2012 Order, absent any unreasonable interference or denial of access on the part of Complainants, then Respondent’s K-21.215669-D License shall be subject to the immediate imposition of discipline.

Note: Complainants may not dictate to Respondent the manner or method of repairs to be performed for Respondent to be in compliance with the Registrar’s directives. Further, Complainants may not restrict which representatives of Respondent are either present for or perform the necessary repairs. Complainants are further cautioned that they must allow Respondent further opportunity to perform the corrective work subsequent to the issuance of this Order and prior to the Compliance Hearing. If Respondent should make reasonable attempts to comply with the March 9, 2012 Order prior to the Compliance Hearing, and Complainants unreasonably deny access to Respondent, this matter shall be closed and no discipline imposed upon Respondent’s License.

Note: Respondent is further reminded that it is also required to submit written proof of compliance with A.R.S. § 32-1124(B) prior to the Compliance Hearing in this matter or risk the suspension of its License.

2. Complainant Denise Diamond (hereinafter “Ms. Diamond”) acknowledged that Complainants denied Sunwest access to their residence on March 28, 2012. Ms. Diamond testified that Complainants disallowed Sunwest access to their residence because they wanted to verify that the proposed method of correction intended by Sunwest would comply with the Registrar’s workmanship standards and building code requirements. 3. Ms. Diamond testified that after discussing the matter with the assigned Agency Inspector and receiving the Order Setting Compliance Hearing, Complainants emailed Sunwest on August 2, 2012, and August 13, 2012, indicating that Complainants would allow Sunwest access to their residence to perform the corrective action required to comply with the March 9, 2012 Order of the Registrar. 4. Ricardo Larios (hereinafter “Mr. Larios”) testified that he and his crew of two men arrived at Complainants’ residence on March 28, 2012, to perform the corrective action necessary to comply with the Registrar’s March 9, 2012 Order. Mr. Larios stated that Jardine Diamond insisted that Sunwest lower the pavers 4” instead of 2” as ordered by the Registrar of Contractors. Mr. Larios testified that Jardine Diamond refused to allow Sunwest to perform work at Complainants’ residence on March 28, 2012. 5. Mr. Larios acknowledged that he received two emails from Denise Diamond in August 2012, offering access to Complainants’ residence. Mr. Larios stated that he was no longer willing to perform corrective work at Complainants’ residence because of the March 28, 2012 denial of access.

6. Mr. Larios acknowledged that he failed to pay the $250.00 civil penalty imposed by the Registrar’s March 9, 2012 Order. 7. Administrative notice is taken of Sunwest’s prior license record as reflected on the Registrar of Contractors’ public website on October 26, 2012. Such prior license record reflects that License No. K-21.215669-D of Sunwest was revoked on August 15, 2012, for Sunwest’s failure to pay a civil penalty. 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. 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. There was no dispute that after the Order Setting Compliance Hearing was issued, Complainants repeatedly contacted Sunwest and offered access to their property. Sunwest chose to disregard repeated opportunities to perform corrective action in lieu of otherwise appropriate disciplinary action against Sunwest’s contractor’s license and chose not to perform any corrective work at Complainants’ residence. 4. There was no credible evidence that Sunwest submitted written proof to the Registrar of Contractors that Sunwest has made changes to form documents that Sunwest uses in Sunwest’s business to comply with the requirements of A.R.S. § 32-1124(B). Sunwest also failed to pay the civil penalty imposed in the Registrar’s March 9, 2012 Order. 5. This Tribunal concludes that Sunwest failed to comply with the terms of the Registrar’s March 9, 2012 Order. RECOMMENDed order In view of the foregoing, it is recommended that License No. K- 21.215669-D of Sunwest shall be revoked. 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, November 8, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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