ALJDEC decisions subject to certification as final

2011A-5655-ROC-com · Registrar of Contractors · 2013-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 15, 2013, at 8:00 a.m. APPEARANCES: Gregory A. Hansen (“Complainant”) did not appear; Licensees Desert Radiant Barrier LLC dba Premier Luxury Homes (“Respondents”) appeared through Michael Fred Wiebe, Respondents’ member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

/ / / / FINDINGS OF FACT 1. On or about February 1, 2013, the Registrar of Contractors (“the Registrar”) issued an Order Denying Request for Rehearing/Order Setting Compliance Hearing in these consolidated matters. The February 1, 2013 Order set forth the issues to be addressed at the Compliance Hearing as follows: On July 10, 2012, the Registrar issued an Order in these matters providing that Respondent’s C37R.224993-R License be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had corrected in a professional and workmanlike manner the loose, poorly mounted angle stops for the water shut-off valves at the toilets and sinks and the corner of the water tank that is visible above ground. If Respondent provided acceptable proof to the Registrar that it had fully accomplished such work on or before the effective date of the Registrar’s Order, then Respondent’s C37R.224993-R License would not be suspended and Case No. 2011-5651 would be closed. Respondent was further ordered to pay a civil penalty in the amount of $250.00 on or before the expiration of thirty (30) days from the effective date of the Order or risk the automatic revocation of its License. The Order had an effective date of August 19, 2012.

The July 10, 2012 Order further provided that Respondent’s B.213755-R License be revoked on the effective date of the Order unless the Registrar received and accepted written proof that Respondent had accomplished one of the following: (1) Respondent had reinstated its License No. B.213755-R and has corrected in a professional and workmanlike manner the holes in the CMU perimeter fence that had been crudely punched to allow drainage, the cabinet door by the cook top that would not close, and the visible bubble area in the patio ceiling drywall; (2) Respondent had paid an amount of money to Complainant that is sufficient to allow Complainant to hire an appropriately licensed contractor of his choice to repair the holes in the CMU perimeter fence that had been crudely punched to allow drainage, the cabinet door by the cook top that would not close, and the visible bubbled area in the patio ceiling drywall; or (3) Complainant has refused to identify an appropriately licensed contractor of his choice to repair the holes in the CMU perimeter fence that had been crudely punched to allow drainage, the cabinet door by the cook top that would not close, and the visible bubbled area in the patio ceiling drywall. If Respondent provided acceptable proof to the Registrar that it had fully complied with the above, on or before the effective date of the Registrar’s Order, then Respondent’s B.213755-R License would not be revoked and Case No. 2011-5655 would be closed. Respondent was further ordered to pay a civil penalty in the amount of $500.00 on or before the expiration of thirty (30) days from the effective date of the Order or risk the automatic revocation of its License. The Order had an effective date of August 19, 2012.

The July 10, 2012 Order further provided that Respondent’s C-11.228117-R License be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had corrected in a professional and workmanlike manner the outlet boxes/receptacles/switches that are not properly secured and the electrical outlets that have stucco/drywall compound on them. If Respondent provided acceptable proof to the Registrar that it had fully accomplished such work, on or before the effective date of the Registrar’s Order, then Respondent’s C-11.228117-R License would not be suspended and Case No. 2011-5656 would be closed. Respondent was further ordered to pay a civil penalty in the amount of $250.00 on or before the expiration of thirty (30) days from the effective date of the Order or risk the automatic revocation of its License. The Order had an effective date of August 19, 2012.

On or about August 14, 2012, Counsel for Complainant filed a timely Motion for Rehearing in these matters.

On or about August 20, 2012, Respondent submitted to the Registrar written correspondence in these matters that [t]he Registrar treated as a Notice of Compliance.

On or about September 11, 2012, Complainant submitted to the Registrar written correspondence in these matters contesting Respondent’s alleged compliance and requesting a compliance hearing.

The Registrar adopts the Administrative Law Judge’s attached Order Recommending that the Registrar of Contractors Deny Complainant’s Petition for Rehearing.

Upon review and consideration of the submissions referenced above, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s July 10, 2012 Order, absent unreasonable interference by Complainant. If it is determined that Respondent has failed to fully comply with the terms of the July 10, 2012 Order, absent unreasonable interference or denial of access on the part of Complainant, then Respondent’s C37R.224993-R, B.213755-R, and C-11.228117-R Licenses shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the July 10, 2012 Order or that Complainant has unreasonably denied Respondent access to fully comply with the terms of the Order, then these matters shall be closed, and no further discipline imposed upon Respondent’s C37R.224993-R, B.213755-R, and C-11.228117-R Licenses.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in these matters 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.

This Order constitutes a final administrative decision reviewable pursuant to the provisions of A.R.S. §12-901, and the previously entered Order will be in full force and effect on March 13, 2013, unless a Stay Order is secured from Superior Court on or before said date.

Note: If an appeal is filed, such shall be limited to the denial of Request for Rehearing.

Note: Complainants are not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it complied with the terms of the July 10, 2012 Order.

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

2. The Registrar referred the matters to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing on the issues set forth in the February 1, 2013 Order. 3. On or about February 27, 2013, the Registrar issued a Notice of Compliance Hearing, setting a Compliance Hearing at the OAH on April 15, 2013, at 8:00 a.m. The Registrar mailed copies of the Notice of Compliance Hearing to Complainant at his address of record and to his attorney. 4. A Compliance Hearing was held on April 15, 2013. Respondents appeared through their member, Michael Fred Wiebe, who testified on their behalf. The Registrar’s inspector, Jeff Fleetham, also testified. 5. Complainant did not request to appear telephonically at the Compliance Hearing and did not request that the hearing be continued. Although the start of the duly noticed Compliance Hearing was delayed thirty minutes to allow Complainant additional travel time, he did not appear, personally or through his attorney, and did not contact the OAH to request that the start of the hearing be further delayed. 6. Mr. Wiebe testified that that after he received the Registrar’s July 10, 2012 Order, Respondents repaired everything that the Registrar’s Order required them to repair, specifically, plumbing and electrical work that the Registrar had determined was deficient. Mr. Wiebe testified that the plumbing and electrical repairs were performed to Complainant’s satisfaction. 7. Mr. Wiebe testified that he referred Complainant to several licensed masonry contractors from whom Complainant could chose a contractor to repair the CMU perimeter fence. Mr. Wiebe testified that the masonry contractors submitted estimates to Complainant and that in December 2012, Complainant chose one of the contractors to perform the repairs. Mr. Wiebe testified that he paid Complainant $1,537.00 in cash at Complainant’s request to hire the contractor that Complainant had selected to repair the CMU perimeter fence and to reimburse Complainant for the time that he spent supervising the repair. 8. Mr. Wiebe testified that in January 2013, Complainant informed him that he was not happy with the paint on the patio ceiling. Mr. Wiebe testified that he had the ceiling repainted. 9. Inspector Fleetham testified that he performed a Compliance Inspection on April 1, 2013. Inspector Fleetham testified that Complainant attended the Compliance Inspection. 10. Inspector Fleetham testified that he inspected all of the items that were set forth on the Registrar’s February 1, 2013 Order for Case No. 2011-5651. Inspector Fleetham testified that License No. C37R-224993- R had corrected in a professional and workmanlike manner the loose, poorly mounted angle stops for the water valves at the toilets and sinks and had covered the corner of the water tank so that it was no longer visible above ground. 11. Inspector Fleetham testified that with respect to the CMU perimeter fence in Case No. 2011-5655, the corrections had been performed by a contractor whom Complainant hired using cash that had been provided by Respondent License No. B.213755-R. 12. Inspector Fleetham testified that he inspected all of the items that were set forth on the Registrar’s February 1, 2013 Order for Case No. 2011-5656. Inspector Fleetham testified that License No. C-11.228117- R had corrected in a professional and workmanlike manner the outlet boxes/receptacles/switches that had not been properly secured and the electrical outlets that had stucco/drywall compound on them. CONCLUSIONS OF LAW The Notice of Compliance Hearing that the Registrar mailed to Complainant at his address of record and to his attorney was reasonable. Complainant is deemed to have received notice of the Compliance Hearing.[1] This matter lies within the Registrar’s jurisdiction.[2] Respondents bear the burden of proof to establish by a preponderance of the evidence that they either complied with the Registrar’s July 10, 2012 Order or that Complainant failed to provide reasonable access for them to do so.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Respondents established that they complied with the Registrar’s July 10, 2012 Order in Case Nos. 2011-5651, 2011-5655, and 2011-5656. RECOMMENDED ORDERS Case No. 2011-5651 Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s Complaint in Case No. 2011-5651 against Respondent’s License No. C37R.224993-R shall be closed. 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 five days after the date of that certification. Case No. 2011-5655 Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s Complaint in Case No. 2011-5655 against Respondent’s License No. B.213755-R shall be closed. 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 five days after the date of that certification. Case No. 2011-5656 Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s Complaint in Case No. 2011-5656 against Respondent’s License No. C-11.228117-R shall be closed. 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 five days after the date of that certification. Done this day, April 16, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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