ALJDEC decisions subject to certification as final

2011A-5574-ROC-com · Registrar of Contractors · 2013-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 28, 2013, at 8:00 a.m. APPEARANCES: Jeffrey M. Peters and Juana Zafra (hereinafter “Complainants”) appeared through Juana Zafra. Can Do Construction LLC (hereinafter “Can Do”) failed to appear. 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 The Order Denying Request for Clarification/Order Setting Compliance Hearing provided, in relevant part, as follows: On or about September 20, 2012, Respondent submitted with the Registrar written correspondence maintaining that Respondent complied with the terms of the Registrar’s August 13, 2012 Order. The Registrar treated this submission as a Notice of Compliance.

On or about October 9, 2012, Complainants submitted with the Registrar written correspondence disputing Respondent’s Notice of Compliance. Complainants requested that a compliance inspection be performed. The Registrar treated this submission as a Notice of Non-Compliance/Request for Compliance Hearing.

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 Tucson area. At the compliance hearing, the parties may offer evidence and testimony as to whether or not Respondent has fully complied with the terms of the Registrar’s August 13, 2012 Order. If it is determined that Respondent failed to comply with the terms of the August 13, 2012 Order, Respondent’s B-3.235765-R License shall be subject to the immediate imposition of discipline.

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 Complainants’ August 28, 2012 Request for Clarification, Respondent’s August 30, 2012 Request for Clarification and Respondent’s August 30, 2012 Request for Extension of Time to Comply all are DENIED, as this matter will be set for a compliance hearing.

The assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), testified that he performed a pre-hearing compliance inspection on May 17, 2013. Inspector Nieves stated that he inspected each item set forth in the Registrar’s August 13, 2012 Order. Inspector Nieves testified that only one item set forth in October 13, 2011 Corrective Work Order that had been corrected by Can Do. Inspector Nieves testified that item number 17, the pocket door installation, had been corrected. Inspector Nieves stated that the remaining items set forth in the Corrective Work Order had not been corrected by Can Do. Inspector Nieves testified that the only item that had been corrected on Complainants’ January 17, 2012 Addendum to the Complaint was the painting of Complainants’ house numbers. Inspector Nieves stated that no corrective work had been performed on the remaining verified items of the January 17, 2012 Addendum to Complainants’ Complaint. Inspector Nieves opined that Can Do had failed to comply with the terms of the Registrar’s August 13, 2012 Order. Inspector Nieves’ testimony is found to be credible. Juana Zafra (hereinafter “Ms. Zafra”) testified that she had prepared a video of the items that the Registrar’s August 13, 2012 Order required Can Do to correct.[1] Ms. Zafra stated that the video demonstrates that the Can Do failed to perform corrective work on Complainants’ residence as required by the Registrar’s August 13, 2012 Order. Ms. Zafra’s testimony is found to be credible. CONCLUSIONS OF LAW 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. 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). There was no evidence of any denial of access by Complainants. Can Do had access to Complainants’ residence on repeated occasions and submitted a Notice of Compliance to the Registrar. Can Do failed to properly comply with terms of the October 13, 2011 Corrective Work Order. Can Do failed to properly correct all of the verified items set forth in the January 17, 2012 Addendum to Complainants’ Complaint. The Notice of Compliance filed by Can Do was inaccurate and misleading. This Tribunal concludes that Can Do failed to fully comply with the terms of the Registrar’s August 13, 2012 Order. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities that reduce, eliminate, or terminate disciplinary action against the contractor’s license. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing that License No. B-3.235765-R of Can Do shall be immediately suspended and that Complainants be allowed to file a claim for their damages with the Residential Contractors’ Recovery Fund. 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 after the date of the certification Done this day, June 11, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit C-1 (DVD).

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