ALJDEC decisions subject to certification as final

2011A-6304-ROC-com · Registrar of Contractors · 2013-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2013, at 8:00 a.m. APPEARANCES: Michael Hogan (hereinafter “Complainant”) appeared on his own behalf. Teca Roofing Systems LLC (hereinafter “Respondent” or “Teca”) 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 1. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On July 26, 2012, the Registrar issued an Order in this matter providing that Respondent’s C-42.220945-R License would be suspended on the effective date of the Order and remain suspended until Respondent submitted written proof to the Registrar, and the Registrar accepted such proof, that Respondent had fully complied with the terms and conditions of the written Corrective Work Order issued in this matter and that Respondent has corrected its form contract to comply with the provisions of A.R.S. § 32-1158(B). If Respondent submitted written proof of compliance to the Registrar, and the Registrar accepted such proof, on or before the effective date of the Order, then Respondent’s C-42.220945-R License would not be suspended and this matter would be closed. The Order further required Respondent to pay a civil penalty to the Registrar in the amount of $500.00 on or before the expiration of thirty (30) days after the effective date of the Order or risk the revocation of its C- 42.220945-R License. The Order had an effective had an effective date of September 4, 2012.

On or about September 6, 2012, Counsel for Respondent submitted a Notice of Compliance in this matter with the Registrar maintaining, that Respondent “has substantially complied with the July 26, 2012 Order for corrective work on September 4, 2012, and has fully completed said work as of September 6, 2012.” The Registrar treated this submission as a Notice of Compliance.

On or about September 10, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “the work perform[ed] at the residence in question is still not in compliance to the original contract or the Corrective Work Order issued by the [Registrar].” Complainant further provided that Respondent “has not replaced the old, existing wood with the newer ½” CDX Plywood as ordered by the [Registrar].”

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 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 26, 2012 Order, absent unreasonable interference by Complainant. If it is determined that Respondent has failed to fully comply with the terms of the July 26, 2012 Order, absent unreasonable interference or denial of access on the part of Complainant, then Respondent’s C-42.220945-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the July 26, 2012 Order or that Complainant has unreasonably denied Respondent access to fully comply with the terms of the Order, then this matter shall be closed, and no further discipline imposed upon Respondent’s C-42.220945-R License.

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.

2. The Corrective Work Order that was issued in the underlying case required Teca to remove the rotting wood sheathing and to replace the wood sheathing on the eaves of Complainant’s residence. 3. The assigned Registrar Inspector, Jeffrey Fleetham (hereinafter “Inspector Fleetham”), testified that he conducted a pre-hearing Compliance Inspection at Complainant’s residence on March 20, 2013. Inspector Fleetham stated that he observed that not all of the wood sheathing on Complainant’s roof had been replaced by Teca.[1] 4. Complainant testified that Teca had failed to replace the wood sheathing on the eaves of his residence. Complainant stated that Teca had failed to remove rotting wood sheathing from his residence. Complainant testified that Teca damaged his residence while Teca was performing corrective work at his residence. Complainant stated that Teca damaged an interior ceiling during its corrective work on the roof. Complainant testified that the interior ceiling damage had been repaired through his insurance company. Complainant stated that Teca failed to comply with the terms of the July 26, 2012 Order of the Registrar. Complainant testified that he had obtained cost estimates for the proper correction of his roof. Complainant stated that the cost of properly correcting his roof would be over $11,000.00.[2] 5. Diane Griffith (hereinafter “Ms. Griffith”) testified that she works for Complainant’s insurance company. Ms. Griffith testified that her insurance company funded the construction work that was performed on Complainant’s roof. Ms. Griffith stated that Teca had failed to perform all of the construction work that Teca was paid to perform. Ms. Griffith testified that she believed that Teca’s failure to comply with the terms of its contract with Complainant may constitute insurance fraud.[3] 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. Teca failed to replace the wood sheathing on the eves of Complainant’s residence. Teca failed to remove rotting wood sheathing from Complainant’s residence. Teca damaged Complainant’s residence while Teca was performing corrective work at his residence. This Tribunal concludes that Teca failed to comply with the terms of the July 26, 2012 Order of the Registrar. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing that License No. C-42.220945-R of Teca shall be immediately revoked. 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 28, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 3/27/13 Hearing Record (hereinafter “H.R.”) at 7:54-10:46. [2] H.R. at 11:04-14:90. [3] H.R. at 14:99-17:50.

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