ALJDEC decisions subject to certification as final

2011A-5673-ROC-com · Registrar of Contractors · 2013-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2013, at 8:00 a.m. APPEARANCES: Brittany Hickok (hereinafter “Complainant”) appeared on her own behalf. Presidio Plumbing With Solar Heating LLC (hereinafter “Presidio”) appeared through its Qualifying Party, Eric Duane Kaiser. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On June 12, 2012, the Registrar issued an Order in this matter providing that Respondent’s K-77.255709-D License would be suspended on the effective date of the Order until the Registrar received and accepted written proof that Respondent had caused a properly licensed contractor, of Respondent’s choice and at Respondent’s sole expense, to fully correct the damage Respondent caused to Complainant’s concrete foundation, wood framing, and concrete slab. If Respondent properly accomplished the above corrective action on or before the effective date of the Order, then Respondent’s K-77.255709-D License would not be suspended and this matter be would closed. The Order had an effective date of July 22, 2012.

On or about July 20, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that “[a]fter all work was complete by a license contractor [Complainant’s] mother then stated that [Respondent] will lose everything because this is not how [Complainant] wanted it.” The Registrar treated this submission as a Notice of Compliance.

On August 15, 2012, the Registrar sent a letter to Respondent asking for written proof that Respondent had caused a properly licensed contractor, of Respondent’s choice and at Respondent’s sole expense, to fully correct the damage Respondent caused to Complainant’s concrete foundation, wood framing, and concrete slab.

On or about August 20, 2012, Complainant submitted written correspondence in this matter with the Registrar acknowledging that repairs were done on July 19, 2012, but disputing that the work performed by the contractor of Respondent’s choice complies with industry standards.

On or about November 30, 2012, Respondent submitted a copy of a Work Order from A1 Remodeling and Construction LLC in Response to the Registrar’s August 15, 2012 letter.

In view of the foregoing, and with good cause appearing, IT IS ORDERED that this matter be set for a Compliance Hearing 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 set forth in the Registrar’s June 12, 2012 Order.

If it is determined that Respondent has failed to comply with the terms of the Registrar’s June 12, 2012 Order, then Respondent’s K-77.255709-D License shall be subject to an immediate suspension. If it is determined that Respondent has fully complied with the terms of the Registrar’s June 12, 2012 Order, then Respondent’s K-77.255709-D License shall not be suspended and this matter shall be closed.

IT IS FURTHER ORDERED that at a date and time prior to the date set for the Compliance Hearing, a Registrar Inspector shall conduct a pre-hearing Compliance Inspection of the work in question. The Inspector shall then be available to testify at the Compliance Hearing as to his observations and findings.

2. The assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), testified that he performed a pre-hearing Compliance Inspection at Complainant’s residence on March 18, 2013. Inspector Nieves stated that the corrective work on Complainant’s residence had been performed by a properly licensed contractor[1] at Presidio’s sole expense. Inspector Nieves stated that he inspected the corrective work that had been performed on Complainant’s concrete foundation, wood framing, and concrete slab. Inspector Nieves testified that the corrective work that had been performed on Complainant’s concrete foundation, wood framing, and concrete slab fully complied with applicable industry standards. Inspector Nieves opined that Presidio had fully complied with the terms of the Registrar’s June 12, 2012 Order.[2] 3. Inspector Nieves’ testimony is found to be credible. 4. Complainant acknowledged that a licensed contractor completed corrective work on her residence and that Presidio paid for the corrective work. Complainant testified that she was not happy with the corrective work performed on her residence. Complainant stated that she was told on several occasions that the concrete would be cut. Complainant testified that she feels that she was misled. Complainant stated that the corrective work that was performed on her damaged concrete slab was not acceptable aesthetically. Complainant acknowledged that she was not familiar with applicable industry standards.[3] 5. Presidio’s Qualifying Party, Eric Duane Kaiser (hereinafter “Mr. Kaiser”), testified that Presidio had caused a properly licensed contractor, at Presidio’s sole expense, to fully correct the damage that Presidio had caused to Complainant’s concrete foundation, wood framing, and concrete slab. Mr. Kaiser stated that he believed that all of the corrective work performed by the properly licensed contractor complied with applicable industry standards.[4] 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. The corrective work on Complainant’s concrete foundation, wood framing, and concrete slab was performed by a properly licensed contractor at Presidio’s sole expense. The corrective work performed on Complainant’s concrete foundation, wood framing, and concrete slab complies with applicable industry standards. This Tribunal concludes that Presidio has fully complied with the terms of the Registrar’s June 12, 2012 Order. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing, that License No. K-77.255709-D of Presidio shall not be suspended and that this matter shall be closed. 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, March 20, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A1 Remodeling and Construction LLC (ROC License No. K-61.223011-D). [2] 3/19/13 Hearing Record (hereinafter “H.R.”) at 9:222-12:16. [3] H.R. at 12:28-15:21. [4] H.R. at 15:32-17:23.

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