ALJDEC decisions subject to certification as final

2011A-5533-ROC-com · Registrar of Contractors · 2013-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2013 and June 28, 2013

APPEARANCES: Complainants appeared on April 4 on their own behalf, they did not appear on June 28;[1] Respondent appeared on his own behalf for both dates.

WITNESSES: Randy Cason, ROC Inspector Alan Deobler Elsayed Hammad Cathy Parenti-Hammad

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter is a compliance hearing to determine whether Respondent has complied with a final order issued by the Registrar of Contractors (“Registrar” or “ROC”). The final order adopted an Administrative Law Judge Decision and required Respondent, in part, to perform corrective work as described in the ALJ Decision. Initially, the compliance dispute between the parties was about reasonable access and method of compliance. At the hearing on April 4, 2013, the parties agreed to a plan for compliance and were allowed time to get the work done. The June 28, 2013, further hearing date was set to determine whether or not Respondent had properly done the work. This tribunal entered the full complaint file received from the Registrar into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance. In addition, Exhibits 1 through 10, and later Exhibit 11, were offered by Respondent and admitted into the record. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has complied with the portion of the final order that requires Respondent to perform corrective work. Procedural Background Following an administrative hearing, the Registrar issued a July 13, 2012 Order (hereinafter “Registrar’s Order”) that gave Respondent until August 22, 2012, to perform corrective work or have its license suspended until Respondent showed that it is in compliance with the Registrar’s Order. The Registrar’s Order adopted the Administrative Law Judge’s Recommended Order that stated: IT IS RECOMMENDED that License No: B.174444-R, held by [Respondent], be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that that Respondent, or another properly licensed contractor at Respondent’s expense, has performed remediation of mold at (1) the common wall between Complainants’ master bathroom and bedroom/office and (2) under the kitchen sink, and the Registrar of Contractors accepts such written proof.

In addition to the corrective work ordered, the Registrar’s Order imposed a period of 180 days of disciplinary probation, to begin after the corrective work was completed. In August 2012, Respondent notified the Registrar that he had been denied access to perform the work. Complainants responded, raising issues about Respondent’s compliance with the Registrar’s Order. Further correspondence by the parties to the Registrar followed. On February 1, 2013, the Registrar issued an Order Denying Request for Clarification/ Order Denying Request for Rehearing/ Order Setting Compliance Hearing that set this matter for a compliance hearing to determine “whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference on the part of Complainants.” FINDINGS OF FACT 1. Respondent is the holder of License No. B.174444-R, a general residential contracting license issued by the Registrar. Respondent is a sole proprietor and is therefore also the Qualifying Party on the license. 2. Both parties appeared and testified on the April 4, 2013, hearing date, along with ROC Inspector Randy Cason who had performed a compliance inspection on April 3, 2013. Inspector Cason testified that no work had been done. The parties then presented their positions and it became clear that Complainants wanted the work done but wanted clarification about how the work would be done. Respondent was willing to do the work if given access to do so but did not want unreasonable requirements placed on him by Complainants. A discussion about what the Registrar’s Order meant ensued. 3. After that discussion, the Administrative Law Judge determined that the parties both wanted the work to be done and they had come to an understanding with each other about what would happen. They wanted a chance to get the work done and the Administrative Law Judge agreed that a reasonable should be given. 4. The understanding reached by the parties at the hearing was that Respondent would perform the mold remediation work and then have an independent testing company test for mold. Complainant agreed to allow access for that process. 5. The Administrative Law Judge adjourned the April 4, 2013 hearing and set a further hearing for June 28, 2013. 6. On June 25, 2013, Respondent filed with this tribunal a Limited Mold Survey Report from Residential Environmental Services of America (“RESA Report”).[2] The RESA Report shows that RESA tested the two areas in question (kitchen and common wall) on June 17, 2013, after Respondent had performed mold remediation in those areas. RESA found that “the areas have been successfully remediated.”[3] The only recommendation was that Respondent “wipe off” some unknown material on the wall behind the dishwasher. 7. The RESA Report is given substantial weight and is found to be credible. 8. On June 28, 2013, Inspector Randy Cason testified that he had performed another compliance inspection on June 27, 2013. At that time, Complainants confirmed that Respondent had wiped off the area behind the dishwasher. Inspector Cason believed that Respondent had complied with the Registrar’s Order. 9. The evidence shows that Respondent has complied with the Registrar’s Order insofar as the corrective work that involved mold remediation. No more corrective work is needed. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Since the Registrar’s Order required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that he has complied, absent a lack of reasonable access.[6] Respondent has met that burden. 2. The RESA Report shows that Respondent has completed the mold remediation as ordered by the Registrar. 3. Respondent has performed the required corrective work and shown proof of compliance. Respondent’s period of probation, as ordered by the Registrar, should begin immediately. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent be found in compliance with the corrective-work part of the Registrar’s Order and that the residual discipline of probation begin immediately.

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, July 18, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The June 28, 2013, further hearing was scheduled for 1:00 PM. At approximately 11:00 AM that day, two hours before the hearing start time, Complainants filed a Motion to Continue by fax, stating that they had been up all night with their disabled daughter who had been sick. The Administrative Law Judge had OAH staff call Complainants back immediately to tell them that the motion would be addressed at 1:00 PM, when Respondent was present, and that either one of the Complainants could appear in person or they could participate by telephone for that discussion. Cathy Parenti- Hammad told OAH staff over the telephone that they could not appear in person and she declined to participate by telephone. There was no further contact with Complainants. [2] This report has been marked as Exhibit 11. [3] Exhibit 11 at p. 13. [4] Arizona Administrative Code (A.A.C.) R2-19-119(B). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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