ALJDEC decisions subject to certification as final

2011A-4028-ROC-com · Registrar of Contractors · 2013-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 10, 2013, at 1:00 p.m. APPEARANCES: Janina A. Hogans (“Complainant”) appeared on her own behalf; Robert James Milford dba R J M Const (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. On or about February 1, 2013, the Registrar of Contractors (“the Registrar”) issued an Order Denying Request for Rehearing/Order Denying Motion to Dismiss/Order Setting Compliance Hearing in this matter. The February 1, 2013 Order set forth the issues to be addressed at the Compliance Hearing as follows: On March 12, 2012, the Registrar issued an Order providing that Respondent’s B-3.097482-R License would be suspended on the effective date of the Order until Respondent provided the Registrar with written proof of compliance with the terms of this Order. The Order had an effective date of April 21, 2012.

On or about March 12, 2012, Respondent paid the $500.00 civil penalty assessed by the Registrar.

On or about April 16, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “would like a new hearing due to some misunderstanding a[t] [the] last hearing.” The Registrar treated this submission as a Request for Rehearing.

On or about May 10, 2012, the Registrar received the Administrative Law Judge’s Recommendation to Deny Petition for Rehearing and to Schedule a Compliance Hearing.

On or about June 25, 2012, Respondent submitted written correspondence in this matter that the Registrar treated as a Motion to Dismiss.

On or about July 18, 2012, Complainant submitted written correspondence in this matter providing, among other things, that Respondent “has not fulfilled contractual agreements to [Complainant’s] satisfaction based on poor and omitted workmanship, the written work order, the corrective notice review, and Administrative Law Judge finding detailed after the January 25, 2012 hearing.” The Registrar treated this submission as a Notice of Non-Compliance.

IT IS ORDERED that the Registrar adopts the Administrative Law Judge’s attached Recommendations to Deny Petition for Rehearing and to Schedule a Compliance Hearing.

A Compliance Hearing shall be scheduled in the expedited course of docketing in the Phoenix area. If it is determined that Respondent has failed to comply with the terms of the March 12, 2012 Order in this matter, Respondent’s B-3.097482-R License shall be subject to the immediate imposition of discipline.

If it is determined that Respondent has complied with the Registrar’s March 12, 2012 Order, then no suspension shall be imposed, but instead Respondent’s B-3.097482-R License placed on disciplinary probation for 90 days.

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.

IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss be DENIED. . . . .

Note: A review of the file in this matter reveals that Respondent has failed to provide the Registrar with documentation that it is fully compliant with A.R.S. § 32- 1124(B). Respondent shall have fifteen (15) days from the date of this Order to provide the Registrar with proof of its compliance with this statute, i.e., provide the Registrar with copies of all standard business documents for Respondent setting forth the information required by A.R.S. § 32-1124(B). If acceptable documentation of compliance with A.R.S. § 32-1124(B) is not received within fifteen (15) days from the date of this Order, the Registrar shall suspend Respondent’s License B- 3.097482-R without further notice.

A Notice of Compliance Hearing shall be issued in due course.

2. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issues set forth in the February 1, 2013 Order. 3. A Compliance Hearing was held on April 10, 2013. The Registrar’s inspector, Ted Gerold, testified. Respondent testified on his own behalf and presented the testimony of his wife, Marianne (“Anne”) Milford. Complainant testified on her own behalf, submitted one exhibit, and presented the testimony of Robert Bates, Complainant’s friend who is employed as a Housing Specialist for the City of Phoenix, but testified on her behalf as a personal favor. Hearing Evidence 4. The Registrar’s March 12, 2012 Order concluded that Respondent had failed to fully comply with the Corrective Work Order (“CWO”) that had been issued in Complainant’s Complaint in the following five respects: (1) He had failed to remove the antenna mounting brackets on Complainant’s pitched roof (CWO Item 1a); (2) He had failed to repair the fascia on Complainant’s back porch to meet applicable workmanship standards, specifically, miter cuts on the fascia that did not abut properly (CWO Item 1b); (3) He had failed to paint T-Tops and metal flashing to match the color of the roof (CWO Item 1e); (4) He had failed to remove the existing roofing down to the decking in the southeast corner of Complainant’s back porch to provide an adequate substrate for the new roofing materials (CWO Item 2a); and (5) He had failed to clean Complainant’s tubular skylights (CWO Item 5).[1] 5. The Registrar’s March 12, 2012 Order also concluded that during Respondent’s attempts to perform repairs to comply with the CWO, he had caused two items of collateral damage: (1) After Respondent had removed two window screens to repair the fascia, he reinstalled one screen without a screw and with a tear in it; and (2) After Respondent had cleaned paintbrushes in a planter, he left paint residue in the planter.[2] 6. Mrs. Milford testified that Complainant did not provide reasonable access to Respondent to allow him to complete the project. Mrs. Milford showed several registered letters that Respondent had sent to Complainant, but all of the letters were dated before March 12, 2012. 7. Inspector Gerold testified that he performed a compliance inspection shortly before the Compliance Hearing. Inspector Gerold testified that in his opinion, Respondent had repaired in a professional and workmanlike manner all of the items on the Registrar’s March 12, 2012 Order with the exception of the following three items: (1) Although Respondent had corrected the miter cuts on the fascia on Complainant’s back porch, touchup painting was still required on a silver dollar- sized area of the lookout, which did not line up exactly with the original painting (CWO Item No. 1b); (2) The tubular skylights still contained insects and other debris on the inside of the lens (CWO Item No. 5); and (3) The torn window screen had not been repaired (collateral damage Item No. 1). 8. Inspector Gerold testified that although Complainant was not satisfied with Respondent’s attempts to clean the residue in the planter (collateral damage Item No. 2), in his opinion, the planter and the dirt that it contained looked fine. 9. Complainant and Mr. Bates testified that there was still paint in the planter underneath the dirt. Complainant showed Inspector Gerold photographs of the planter that showed a brownish substance on the inside of the planter above the dirt surface. Although Inspector Gerold testified that that the brownish substance appeared to be dirt that had splashed up in a rainstorm, he acknowledged that it was possible that brown paint could have been mixed in the dirt. 10. Inspector Gerold testified that at the compliance inspection, he asked Complainant to show him any repairs with which she remained dissatisfied. Inspector Gerold testified that Complainant tried to show him new items that were not on the CWO or that Complaint that she had filed with the Registrar in this matter, and he advised her that she needed to file a new complaint to address these new items. 11. After the parties agreed that Inspector Gerold could be released, Complainant showed a photograph of a small gap between a lookout and a soffit. Mr. Bates testified that the gap was large enough to allow bees and wasps to build a hive. Complainant and Mr. Bates did not identify the location of the gap or testify that it was in the area of the fascia on Complainant’s back porch, where the CWO had directed Respondent to perform repairs. 12. Respondent testified that as a result of Complainant’s complaint, his license was suspended. Administrative notice is taken Respondent’s License record as reflected on the Registrar’s public website on April 23, 2013. Such prior License record reflects that on February 25, 2013, the Registrar suspended Respondent’s License No. B- 3.097482-R until it complied with the Registrar’s Order.[3] The Registrar’s public website also reflects one open complaint, one complaint that was closed as resolved/ settled/withdrawn, and one complaint that resulted in discipline against Respondent’s License No. B-3.097482-R. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[4] Respondent bears the burden of proof to establish by a preponderance of the evidence that he either complied with the Registrar’s March 12, 2012 Order or that Complainant failed to provide reasonable access for him to do so.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Respondent did not establish that Complainant failed to provide reasonable access to allow him to comply with the Registrar’s March 12, 2012 Order. Respondent established that he complied with the Registrar’s March 12, 2012 Order in all respects except the remaining deficiencies to which Inspector Gerold testified, to wit, the small area of touchup painting that was still needed on the lookout on Complainant’s back porch, the debris in the tubular skylights, and the torn window screen. Complainant’s evidence did not overcome Inspector Gerold’s testimony that the planter did not require additional cleanup and that the additional items that Complainant wanted Respondent to correct, such as the gap between the lookout and the soffit in the undisclosed location shown on Complainant’s photograph, were not included in the original complaint or the CWO. RECOMMENDED ORDERS Based on the foregoing, it is recommended that on Compliance Hearing, Respondent Robert James Milford dba R J M Const’s License No. B-3.097482-R shall be immediately revoked. 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 23, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Decision at Finding of Fact Nos. 8, 9, 10, 11, and 13. [2] See Decision at Finding of Fact No. 14. [3] It appears that Respondent may not have provided the Registrar with proof that it had revised its business forms and documents to comply with the requirements of A.R.S. § 32-1124(B) in the time allowed by the February 1, 2013 Order. A.R.S. § 32-1124(B) requires that licensed contractors include their license number “preceded by the acronym ‘ROC’“ on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [4] See A.R.S. §§ 32-1151 to 32-1169. [5] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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