PDF copy: ALJDEC decisions subject to certification as final

2011A-5071-ROC · Registrar of Contractors · 2013-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Katherine Thompson No. 2011A-5071-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION -v-

License No. KB-1.256729-D of Gary Hickey Construction LLC

RESPONDENT

HEARING: April 4, 2013, at 8:00 a.m. APPEARANCES: Katherine Thompson (hereinafter “Complainant”) appeared through her attorney, Patrick J. Lopez, Esq., Mesch, Clark & Rothschild, P.C. Gary Hickey Construction LLC (hereinafter “Hickey Construction”) appeared through its attorney, Brenda J. Lee, Esq., Lee & Travers, P.L.C. 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 March 21, 2012, the Registrar issued a Default Decision and Order in this matter providing that Respondent’s KB- 1.256729-D License would be revoked on the effective date of the Default Decision and Order unless Respondent accomplished the corrective work involved and detailed in the Complaint and the Registrar’s Corrective Work Order. If Respondent accomplished the aforementioned corrective work on or before the Default Decision and Order’s effective date, then Respondent’s KB-1.256729-D License would not be revoked, but instead, placed on disciplinary probation for a period of ninety (90) days. The Default Decision and Order further required Respondent pay a $250.00 civil penalty to the Registrar on or before the expiration of thirty (30) days after the effective date of the Order or risk the revocation of its KB-

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 1.256729-D License. The Default Decision and Order had an effective date of April 30, 2012. On September 28, 2012, the Registrar issued its Order Denying Respondent’s Request for Rehearing in this matter providing that Respondent had until November 7, 2012, to comply with the terms of the Registrar’s March 21, 2012 Default Decision and Order unless Respondent obtained a Stay Order from Superior Court on or before said date. On or about October 16, 2012, Counsel for Respondent submitted a Motion to Close Complaint Due to Denial of Access maintaining, among other things, that Complainant had sold the residence and that because Respondent “cannot perform work at a residence that is not owned by the Complainant, Respondent is unable to comply with the Order.”

On or about October 22, 2012, Respondent paid the $250.00 civil penalty in accordance with the terms set forth in the Registrar’s March 21, 2012 Default Decision and Order.

On or about October 29, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Respondent “was not denied access to [Complainant’s] home.” Complainant further provided that Counsel for Respondent “did not ever contact [Complainant’s] attorney to schedule a time for this work to be performed until after the ROC denied [Respondent’s] rehearing, a full year after [Respondent] was issued a corrective work order.” In view of the foregoing, and with good cause appearing, IT IS 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 Complainant has denied Respondent access to comply with the Registrar’s directives or whether or not Respondent has failed to fully comply with the Registrar’s directives, absent unreasonable interference by Complainant.

If it is determined that Respondent failed to fully comply with the terms of the March 21, 2012 Default Decision and Order, absent unreasonable interference by Complainant,

Respondent’s KB-1.256729-D License shall be subject to immediate revocation. If it is determined that Complainant unreasonably interfered with Respondent’s attempts at compliance or denied Respondent the ability to comply with the terms of the March 21, 2012 Default Decision and Order, then Respondent’s KB- 1.256729-D License shall not be revoked, but instead be placed on disciplinary probation for a period of ninety (90) days.

2. Complainant testified that the Default Decision and Order of the Registrar of Contractors was issued on March 21, 2012. Complainant stated that her residence was already under contract to be sold on March 21, 2012. Complainant testified that she received no contact of any kind from Hickey Construction after the March 21, 2012 Default Decision and Order was issued. Complainant stated that the sale of her residence went through on April 6, 2012. Complainant testified that she would have probably allowed Hickey Construction access to the residence to perform the corrective work required by the March 21, 2012 Default Decision and Order if Hickey had contacted her and offered to perform the required corrective work. Complainant stated that her residence was sold in an “as is” condition.1 3. Complainant acknowledged that she issued an email to Hickey Construction on November 13, 2011,2 advising Hickey Construction that it no longer had access to the residence. Complainant stated that she did not advise Hickey Construction that it could return to the residence to comply with the terms of the Corrective Work Order as required by the March 21, 2012 Default Decision and Order. Complainant testified that she thought that it was understood that Hickey Construction’s attorney would contact her attorney to gain access to the residence. Complainant stated that Hickey Construction made no attempt to contact her to gain access to her residence after the March 21, 2012 Default Decision and Order.3

1 4/4/13 Hearing Record (hereinafter “H.R.”) at 21:07-28:00. See Exhibit No. R -21 (11/13/11 Email). 3 H.R. at 32:51-38:24. 4. Hickey Construction’s Qualifying Party, Gary Wayne Hickey (hereinafter “Mr. Hickey”), testified that Hickey Construction had no personal contact with Complainant after November 11, 2011. Mr. Hickey stated that Complainant advised Hickey

Construction that it no longer had access to her residence after November 13, 2011.4

5. Mr. Hickey testified that the March 21, 2012 Default Decision and Order

provided Hickey Construction with 30 days to comply with the terms of the Corrective

Work Order issued in this matter. Mr. Hickey stated that Hickey Construction would

have complied with the terms of the Corrective Work Order if it had ability to do so.5

6. Mr. Hickey testified that within the “last few months,” he discovered that

Complainant’s residence had been sold on April 6, 2012. Mr. Hickey stated that if

Complainant still lived in the residence, Hickey Construction would have fully complied

with the terms of the March 21, 2012 Default Decision and Order.6

7. Mr. Hickey acknowledged that Hickey Construction filed a petition for rehearing

rather than contacting Complainant and attempting to comply with the terms of the

March 22, 2012 Default Decision and Order. Mr. Hickey stated that Hickey

Construction had no knowledge that Complainant had sold her residence when Hickey

Construction filed its petition for rehearing. Mr. Hickey testified that until recently, Hickey Construction did not know that the house had been sold on April 6, 2012. Mr. Hickey acknowledged that Hickey Construction was aware that the purpose of the remodeling project was to renovate the residence so that it could be sold. 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).

4 H.R. at 39:01-42:03. H.R. at 42:04-44:51. 6 H.R. at 44:52-47:18. 3. On September 28, 2012, the Registrar issued its Order Denying Hickey Construction’s Request for Rehearing in this matter providing that Hickey Construction had until November 7, 2012, to comply with the terms of the

Registrar’s March 21, 2012 Default Decision and Order. There was no dispute that

Complainant’s residence had been sold on April 6, 2012, to a third party. After April

6, 2012, Hickey Construction no longer had access to Complainant’s residence to

comply with the terms of the Registrar’s March 21, 2012 Default Decision and

Order. This Tribunal concludes that Complainant denied Hickey Construction the

ability to comply with the terms of the March 21, 2012 Default Decision and Order

by selling her residence on April 6, 2012.

RECOMMENDED ORDER

In view of the foregoing, it is recommended on Compliance Hearing that License

No. KB-1.256729-D of Hickey Construction shall be immediately placed on

disciplinary probation for a period of ninety (90) days. 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 5 days from the date of the certification Done this day, April 19, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors