ALJDEC decisions subject to certification as final

2011A-4782-ROC-com · Registrar of Contractors · 2013-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2013, at 8:00 a.m. APPEARANCES: Patrick McMahon and Linda McMahon (hereinafter “Complainants”) appeared through Linda McMahon. Duck Creek Ranch Construction and Excavating LLC (hereinafter “Duck Creek”) appeared through its Qualifying Party, Michael James Dale. 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 Registrar of Contractors’ Order Denying Extension of Time/Order Setting Compliance Hearing provides, in pertinent part, as follows: On or about August 20, 2012, Complainants submitted written correspondence in this matter with the Registrar providing that Respondent “has not complied with the Registrar of Contractors Corrective Work Order dated August 30, 2011. Item #1 of the Corrective Work Order requires the concrete footers to be 12 inches in depth. This was not done.”

On August 27, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining that Respondent “feels it ha[s] complied to the Corrective Work Order and [is] requesting a compliance hearing. [Respondent] also need[s] an extension of time since the ROC has given [Respondent] a deadline of September 5, 2012 to resolve this complaint.” The Registrar treated this submission as a Request for Compliance Hearing and a Request for Extension of Time to Comply.

On the following day, Respondent submitted written correspondence with the Registrar requesting that a Registrar Inspector perform a Compliance Inspection in the expedited course.

On or about September 5, 2012, Complainants submitted written correspondence in this matter with the Registrar providing, among things, that Respondent “has failed to comply with the Registrar of Contractors Corrective Work Order dated August 30, 2011, and has also failed to comply with the Registrar of Contractors Final Administrative Order dated July 27, 2012 . . . . [Respondent] has been given ample time and a deadline by the ROC and [Respondent] should not be granted an extension . . . . Since [Respondent] has not complied with the Corrective Work Order or the Final Administrative Order, [Respondent] has no grounds for a Compliance Hearing.”

On or about October 22, 2012, Respondent paid the $250.00 civil penalty to Registrar in accordance with the terms of the March 15, 2012 Order.

Upon review and consideration, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Extension of Time is DENIED.

Justification: Respondent has had a sufficient amount of time within which to comply with the terms of the Registrar’s March 15, 2012 Order. Further, in its August 27, 2012 correspondence, Respondent provided that it had complied with the Corrective Work Order; thus, no extension of time would be warranted subsequent to the receipt of such submission.

IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Tucson area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s March 15, 2012 Order. If it is determined that Respondent failed to comply with the terms of the Registrar’s March 15, 2012 Order, Respondent’s B.245909-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent fully complied with the terms of the Registrar’s March 15, 2012 Order, and all work performed meets minimum workmanship standards, Respondent’s B.245909-R License will not be suspended and this matter will 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.

2. The assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), testified that he conducted a pre-hearing Compliance Inspection on February 5, 2013. Inspector Nieves stated that he examined each item listed on the Corrective Work Order. Inspector Nieves testified that Duck Creek had failed to comply with the terms of the Corrective Work Order and the Registrar’s March 15, 2012 Order.[1] 3. Patrick McMahon (hereinafter “Mr. McMahon”) testified that Duck Creek had not performed any corrective work at Complainants’ residence as required by the terms of the Registrar’s March 15, 2012 Order. Mr. McMahon stated that Duck Creek had not requested access to Complainants’ residence to perform the corrective work required to comply with the terms of the Registrar’s March 15, 2012 Order.[2] 4. Linda McMahon (hereinafter “Ms. McMahon”) testified that Duck Creek had failed to comply with the terms of the Corrective Work Order.[3] 5. Duck Creek’s Qualifying Party, Michael James Dale (hereinafter “Mr. Dale”), testified that he disagreed with the terms of the Corrective Work Order and the Registrar’s March 15, 2012 Order. Mr. Dale stated that pressure treated lumber is not required and that Duck Creek should not have to replace the non-pressure treated lumber. Mr. Dale acknowledged that Duck Creek had not performed any corrective action at Complainants’ residence in response to the Registrar’s March 15, 2012 Order. Mr. Dale testified that Duck Creek performed no corrective action because he disagreed with the terms of the Corrective Work Order and the Registrar’s March 15, 2012 Order. Mr. Dale stated that Mr. McMahon said critical things about Duck Creek’s construction work during the pre-hearing Compliance Inspection.[4] 6. Mr. Dale’s wife, Joanne Rebecca Dale (hereinafter “Ms. Dale”), testified that Mr. McMahon’s anger is “out of control.” Ms. Dale acknowledged that Duck Creek’s Petition for Rehearing had been denied by the Registrar of Contractors. Ms. Dale stated that she did not understand the process.[5]

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 Duck Creek had not returned to perform any corrective action at Complainants’ residence as required by the terms of the Registrar’s March 15, 2012 Order. Duck Creek’s August 27, 2012 letter asserting that Duck Creek “feels it ha[s] complied to the corrective work order and is requesting a compliance hearing” was based on Duck Creek’s disagreement with the terms of the Corrective Work Order and the terms of the Registrar’s March 15, 2012 Order. Duck Creek performed no corrective action at Complainants’ residence as required by the Registrar’s March 15, 2012 Order. This Tribunal concludes that Duck Creek has failed to comply with the terms of the Registrar’s March 15, 2012 Order. RECOMMENDed order In view of the foregoing, it is recommended that. License No. B.245909- R of Duck Creek shall be immediately suspended for a period of 30 days and that Complainants be given access to the Residential Contractors’ Recovery Fund for their damages, if they are found to be otherwise eligible. 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 five days from the date of the certification. Done this day, February 25, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/7/13 Hearing Record (hereinafter “H.R.”) at 24:34-42:13. [2] H.R. at 42:35-44:19. [3] H.R. at 44:45-49:45. [4] H.R. at 50:12-1:12:03. [5] H.R. at 1:12:35-1:16:03.

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