ALJDEC decisions subject to certification as final

2011A-3994-ROC-com · Registrar of Contractors · 2013-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: December 12, 2012 APPEARANCES: Carl Ramsey (“Complainant”) appeared via videoconference. Encore Security, Inc. (“Respondent”) was represented by its authorized representative, Keith Porter, who appeared via videoconference. 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 on Compliance: FINDINGS OF FACT 1. The Registrar of Contractors (“Registrar”) issued an Order Setting Compliance Hearing in the above-captioned matter that provided as follows: On June 1, 2012, the Registrar issued an Order in this matter providing that Respondent’s K-67.184408-D License would be suspended on the effective date of the Order and remain suspended until the Registrar received satisfactory written proof that Respondent had repaired Complainant’s rainwater tank sensors in a workmanlike manner. If the Registrar received satisfactory written proof that Respondent had repaired Complainant’s rainwater tank sensors in a workmanlike manner on or before the effective date of the Order, then Respondent’s K- 67.184408-D License would not be suspended. The Order further required Respondent pay a $200.00 civil penalty to the Registrar on or before the expiration of thirty (30) days from the effective date of the Order or risk the revocation of its K- 67.184408-D License. The Order had an effective date of July 11, 2012.

On or about June 18, 2012, Respondent paid the $200.00 civil penalty to the Registrar in accordance with the terms of the Registrar’s June 1, 2012 Order.

On or about July 6, 2012, Counsel for Respondent submitted a Notice of Compliance in this matter with the Registrar maintaining, among other things, that “Respondent has diligently attempted to comply with the corrective work required by the Order and completed virtually all required remedial work; however Complainant Carl Ramsey (‘Complainant’) has failed to provide reasonable access to his property, such that Respondent cannot complete the remedial work prior to the July 11, 2012 deadline.” Counsel further maintains that “[d]espite Respondent’s attempts to schedule adequate time to complete the repairs, Complainant’s misinterpretation of the Order have caused Respondent to be denied reasonable access to Complainant’s property.” Counsel also maintains that “[s]hould Complainant subsequently provide Respondent reasonable access to his property prior to July 11, 2012, Respondent will perform any remaining corrective work required by the Order and file a Supplemental Notice of Compliance with the Registrar confirming that the required remedial work has been completed.” The Registrar treated this submission as a Notice of Compliance/Notice of Denial of Access.

On or about July 16, 2012, Counsel for Complainant submitted an Objection to Notice of Compliance in this matter with the Registrar providing, among other things, that Respondent “did not contact [Complainant] to schedule any corrective work until June 18, 2012. [Complainant] advised Respondent that the only dates that [Complainant] was not available to provide access to the property was June 27 through July 5, when [Complainant] would be out of town, but would otherwise be available. This does not constitute an unreasonable denial of access.” Counsel also provides that Respondent “worked on [Complainant’s] property on June 21, June 22, July 6 and July 10. . . . The job is still not completed and this case should not be closed until the entire system is operational and functioning properly.”

On or about July 17, 2012, Counsel for Respondent submitted a Supplemental Notice of Compliance and Reply to Complainant’s Objection to Notice of Compliance in this matter with the Registrar maintaining, among other things, that “[d]espite Respondent’s successful repair of the rainwater tank sensors on July 10, 2012, on July 11, 2012, Complainant objected to Respondent’s Notice of Compliance, stating ‘this case should not be closed until the entire system is operational and functioning properly.’ The Decision and Order . . . only found Respondent responsible for the performance of remedial work with respect to the rainwater tank sensors.”

On or about August 15, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Complainant objects to Respondent’s Notice of Compliance and that Respondent failed to complete the necessary corrective work or perform such work in a workmanlike manner.

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 Flagstaff area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the June 1, 2012 Order, absent unreasonable interference by Complainant.

If it is determined that Respondent failed to comply with the terms of the June 1, 2012 Order, absent unreasonable interference by Complainant, Respondent’s K-67.184408-D License shall be subject to the imposition of immediate discipline.

If it is determine that Complainant unreasonably interfered with Respondent’s attempts at compliance or denied Respondent the ability to comply with the terms of the June 1, 2012 Order, then no discipline shall be imposed upon Respondent’s K-67.184408-D 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.

Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it has fully complied with the terms of the June 1, 2012 Order.

2. On October 23, 2012, the Registrar issued a Notice of Compliance Hearing advising the parties of the time, date, and location of the Compliance Hearing before the Office of Administrative Hearings, an independent agency. The Notice of Compliance Hearing informed the parties that the scope of the Compliance Hearing was “to determine whether or not Respondent has complied with the June 1, 2012 Order, absent unreasonable interference by Complainant.” 3. On or about June 28, 2012, Respondent purchased two Sonix-40 Ultrasonic Level Transmitters from Automated Sonix Corporation in Boca Grande, Florida. The transmitters were purchased for installation in two of Complainant’s rainwater tanks. Respondent paid a total of $1,826.59 for the transmitters and next-day air shipping. 4. On July 10, 2012, Respondent’s installer, Hugh Brydon, traveled to Complainant’s residence to perform the remedial work. Complainant had someone onsite to provide access to the property to Mr. Brydon. 5. Mr. Brydon first installed a new sensor on Complainant’s rainwater tank located in the front yard east of the driveway. He replaced some PVC conduit to provide a watertight fit and to avoid any damage from the removal of the old sensor. Mr. Brydon tested and verified power and then calibrated the new sensor before installing it into the top of the tank. 6. Mr. Brydon next installed the second new sensor on Complainant’s rainwater tank located south of Complainant’s front yard by the front gate between two sheds. He replaced some PVC conduit in order to provide a watertight fit and to avoid any damage from the removal of the old sensor. Mr. Brydon tested and verified power and then calibrated the second new sensor before installing it into the top of the second tank. 7. Mr. Brydon then tested and verified the operation of Complainant’s third sensor for the rainwater tank located in the rear of the property north of the detached garage. The third sensor was already functioning and did not require replacement. Mr. Brydon calibrated the sensor and verified its operation. 8. Mr. Brydon verified the operation of all three-tank sensors on the “Smart Home” system touch screen monitors in Complainant’s residence. 9. Respondent submitted a video showing the sensors working on Complainant’s “Smart Home” system monitors that Mr. Brydon made before he left the residence. 10. Complainant submitted photographic evidence depicting his “Smart Home” system monitors not working properly. He contended that the photographic evidence proved that Respondent did not comply with the Registrar’s Order to repair the rainwater tank sensors in a workmanlike manner. 11. Respondent noted that Complainant’s photographic evidence showed that his “Smart Home” system was not functioning due to problems with Complainant’s internet service, not Respondent’s workmanship on the rainwater tank sensors. Respondent presented credible evidence that the issues with Complainant’s system after Mr. Brydon completed his scope of work were homeowner maintenance issues with Complainant’s “Smart Home” system. 12. At the hearing, Complainant complained that Mr. Brydon left the wiring panels for Complainant’s “Smart Home” system in disarray. However, Mr. Brydon credibly testified that he left the panels open as he had found them. The evidence of record established that other contractors had access to the wiring panels. 13. The Registrar’s assigned inspector did not perform a pre-hearing compliance inspection of Complainant’s rainwater tank sensors. CONCLUSIONS OF LAW 1. Respondent has the burden of establishing that it complied with the Registrar’s prior Order to perform remedial repairs to the sensors in Complainant’s rainwater tanks in a workmanlike manner. See A.A.C. R2- 19-119(B). The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 2. The weight of credible evidence of record established that Respondent repaired Complainant’s rainwater tank sensors in a workmanlike manner as required by the Registrar’s June 1, 2012 Order. 3. The evidence of record further established that the problems experienced by Complainant with his “Smart Home” system monitors after Respondent repaired the rainwater tank sensors on July 10, 2012, were attributable to the “Smart Home” system issues unrelated to Respondent’s workmanship. RECOMMENDED ORDER ON COMPLIANCE Based on the foregoing, IT IS RECOMMENDED that Case No. 2011-3994 be closed on the effective date of the Registrar’s final order in this matter.

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 shall be 40 days from the date of the certification. Done this day, January 2, 2013.

/s/ Brian Brendan Tully 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