ALJDEC decisions subject to certification as final

2011A-6687-ROC-com · Registrar of Contractors · 2013-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2013, at 8:15 a.m. APPEARANCES: Doone Burgener (hereinafter “Complainant” or “Ms. Burgener”) was represented by her attorney, T’shura-Ann Elias, Esq., Gregory & Elias, PLC. S C R Sun Country Restoration Inc. (hereinafter “Sun Country” or “Respondent”) was represented by its attorney, Jeffrey A. Goldberg, Esq., Bruno, Brooks & Goldberg, P.C. Complainant presented the testimony of Ms. Burgener and Christopher Nossaman and submitted 78 Exhibits. Sun Country presented the testimony of Christopher Nossaman and submitted 17 exhibits. 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 Registrar’s Order Denying Extension of Time to Comply and Denying Request to Dismiss/Order Setting Compliance Hearing provides, in relevant part, as follows: On June 18, 2012, the Registrar issued an Order in this matter providing that Respondent’s KB-1.228518-D License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had either fully comply with the terms of the written Corrective Work Order issued in this matter or that Respondent had again been denied reasonable access to Complainant’s residence. If Respondent properly accomplished the above described actions or was denied reasonable access to Complainant’s residence, on or before the effective date of the Order, then Respondent’s KB- 1.228518-D License would not be suspended and this matter be closed. The Order had an effective date of July 28, 2012.

On or about June 20, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “called and left a message for [Complainant] on [Complainant’s] cell at 928.486.2277 today at 10:45 am regarding need to schedule a time and day with [Complainant] to access the home and address tiles that need fixed per the written order from the Registrar of Contractors.” On or about June 22, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “called and left another message for [Complainant] today (6/21/12) at 3:00 pm. Asked [Complainant] to please call [Respondent] to schedule repairs as per Registrar[‘]s order.”

On or about July 9, 2012, Respondent submitted a Stipulation to Extend Effective Date of Order Entered on June 18, 2012, and to Set Date and Time for Commencement of Corrective Work in this matter with the Registrar maintaining, among other things, that Complainant “agrees to allow Respondent any and all access reasonably required by Respondent to Complainant’s residence for purposes of making repairs by the ROC’s Order, beginning on August 14, 2012 at 9:00 a.m. and continuing thereafter until completion of said repairs.” The Stipulation was signed by Complainant and Respondent. The Registrar treated this submission as a Request for Extension of Time to Comply. On or about July 20, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “spoke to [Complainant] this morning at 8:20 am. [Respondent] told Complainant that [Complainant and Respondent] still have not received any extension from the ROC and needed to gain access to complete repairs. [Complainant] stated that [Complainant] was out of town and therefore [Respondent] could not have access.” The Registrar treated such submission as a Denial of Access.

On or about July 23, 2012, Respondent submitted written correspondence addressed to Complainant in this matter with the Registrar maintaining, among other things, that Respondent “made [Complainant] aware that [Complainant and Respondent] still have not received any extension from the Registrar of Contractors regarding their Order dated June 18, 2012 in Case No. 2011-6687. [Respondent] again asked for access to the home to do repairs and [Complainant] state[d] that [Respondent] could not have access as [Complainant] were out of town.”

On or about July 25, 2012, Respondent submitted written correspondence addressed to Complainant in this matter with the Registrar maintaining, among other things, that Respondent “have touched based with [Complainant] numerous times to organize a time that works for all parties within the ordered time period.”

On or about July 27, 2012, Counsel for Respondent submitted Respondent’s Notice Regarding Order Entered on June 18, 2012 with the Registrar maintaining, among other things, that Complainant “continues to withhold access to the residence so that no repairs could possibly be conducted before the [e]ffective [d]ate.” Counsel further requested that this matter be dismissed due to Complainant’s denial of access.

On or about July 30, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Complainant is “requesting that the ROC do not dismiss the order because [Complainant] have worked with [Respondent] to set a date to allow the work to start and be completed in the month of August. [Complainant] have never denied access to Respondent. [Complainant] [is] willing and prepared to start on August 14, 2012 as per the date we both agreed to in June.”

On or about August 31, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Respondent “[b]y way of update, [Respondent] has been in contact with [Complainant] in order to perform repairs as per the order dated 6/18/12. [Respondent] was not previously allowed access by [Complainant prior to the effective date of July 28, 2012. [Respondent] has repeatedly tried to gain access and repair the tile floor in [Complainant’s] home. [Respondent] respectfully requests that this matter please be closed.

On or about September 6, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “the Order issued by your office on June 18, 2012 has not been fulfilled by Respondent.” On or about September 20, 2012, Complainant submitted written correspondence in objection to Respondent’s denial of access.

On or about September 21, 2012, Counsel for Respondent submitted written correspondence with the Registrar maintaining, among other things, that “Respondent should be relieved of any further action and/or discipline in this matter.”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Extension of Time to Comply be DENIED as the need for an extension of time is now moot.

IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss be DENIED.

IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Kingman area. At the Compliance Hearing the parties may offer evidence and testimony as to whether or not Complainant have denied Respondent access to comply with the Registrar’s directives or whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference on the part of Complainants.

If it is determined that Respondent has failed to comply with the terms of the June 18, 2012 Order in this matter, absent unreasonable interference by Complainants, Respondent’s KB- 1.228518-D License shall be subject to the immediate imposition of discipline. If it is determined that Complainants have unreasonably interfered with Respondent and/or its agents or employees attempts at compliance or have unreasonably denied them access, then no suspension shall be imposed, and this matter shall be closed.

Note: Complainant may not dictate to Respondent the manner or method of repairs to be performed for Respondent to be in compliance with the Registrar’s directives. Further, Complainant may not restrict which representatives of Respondent are either present for or perform the necessary repairs.

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

Testimony of Doone Burgener Ms. Burgener testified that she agreed with the statement of facts set forth in the in Registrar’s Order Denying Extension of Time to Comply and Denying Request to Dismiss/Order Setting Compliance Hearing. Ms. Burgener stated that she was out-of-town on vacation when the Registrar’s June 18, 2012 Order was issued. Ms. Burgener testified that she knew that she would not be home until after July 28, 2012. Ms. Burgener stated that she contacted the Registrar of Contractors and was advised that the parties could agree to extend the period of time to comply with the Registrar’s June, 18, 2012 Order. Ms. Burgener testified that the parties then stipulated to have the corrective work performed at her residence on August 14, 2012.[1] Ms. Burgener acknowledged that she had a telephone conversation and received a letter from Sun Country on or about July 20, 2012, regarding the fact that the Registrar had not extended the period of time to comply with the Registrar’s June 18, 2012 Order.[2] Ms. Burgener testified that she was unable to grant access to Sun Country during the month of July 2012, because of a scheduling conflict. Ms. Burgener stated that she was on vacation during that time period. Ms. Burgener testified that she informed Sun Country that she was willing to comply with the terms of the parties’ stipulation and that Sun Country would be allowed access to her residence on August 14, 2012, to perform the corrective action necessary to comply with the terms of the Registrar’s June 18, 2012 Order. Ms. Burgener testified that Penny Sures (hereinafter “Ms. Sures”) of Desert Floor Inspections performed an inspection of her tile flooring on August 14, 2012, and marked with blue tape the floor tiles that required replacement. Ms. Burgener stated that Sun Country’s branch manager, John Sanchez (hereinafter “Mr. Sanchez”) arrived at her residence with several other employees. Ms. Burgener testified that Sun Country stored tile and thin-set material in her garage. Ms. Burgener stated that she did not believe that Sun Country had delivered enough material to correct her entire floor and questioned Mr. Sanchez. Ms. Burgener testified that Mr. Sanchez said that Sun Country was only going to replace the tile that Ms. Sures marked for unacceptable lippage. Ms. Burgener stated that she believed that Sun Country was ignoring the terms of the Registrar’s June 18, 2012 Order. Ms. Burgener testified that she expressed her dissatisfaction with the limited scope of corrective work that Sun Country intended to perform. Ms. Burgener stated that Mr. Sanchez approached her and asked if she would be willing to discuss settlement. Ms. Burgener testified that she would be willing to discuss settlement terms with Sun Country. Ms. Burgener stated that she then obtained bids from other flooring companies for the correction of her floor and passed them to Sun Country. Ms. Burgener stated that the parties were unable to resolve their differences. Ms. Burgener testified that Sun Country’s employees left her residence without performing any corrective work on her floor tile. Ms. Burgener stated that she had never, at any time, denied access to Sun Country to perform corrective work at her residence. Ms. Burgener stated that she was not attempting to dictate a method of repair to Sun Country. Ms. Burgener testified that she was attempting to ensure that all of the corrective action required by the Registrar’s June 18, 2012 Order was performed. Ms. Burgener acknowledged that the Registrar’s June 18, 2012 Order required her to grant Sun Country reasonable access to her residence to perform the required corrective action. Ms. Burgener acknowledged that she was unable to provide Sun Country access during the month of July 2012, because she was on vacation. Ms. Burgener acknowledged that Sun Country had expressed concerns about obtaining access to her residence within the time period specified in the Registrar’s June 18, 2012 Order.[3] Ms. Burgener testified that Sun Country knew that she was out of town and unavailable during July 2012. Ms. Burgener stated that the parties had already agreed that Sun Country would perform corrective work on her tile floor on August 14, 2012. Ms. Burgener testified that Sun Country failed to comply with the terms of the Registrar’s June 18, 2012 Order. Ms. Burgener acknowledged that she had no reason to believe that Sun Country was not going to fully comply with the terms of the Registrar’s June 18, 2012 Order on August 14, 2012. Ms. Burgener denied that she attempted to dictate the method of performing corrective work to Sun Country. Ms. Burgener denied that she stated that she wanted her entire tile floor replaced on August 14, 2012. Ms. Burgener stated that she did not deny access to Sun Country on August 14, 2012. Testimony of Christopher Nossaman Christopher Nossaman (hereinafter “Mr. Nossaman”) testified that he is the general manager of operations for Sun Country. Mr. Nossaman stated that Sun Country repeatedly attempted to gain access to Ms. Burgener’s residence during the months of June and July 2012. Mr. Nossaman testified that all of Sun Country’s attempts to gain access during the month of July 2012, were unsuccessful.[4] Mr. Nossaman testified that the parties entered into a stipulation to extend the effective date of the Registrar’s June 18, 2012 Order.[5] Mr. Nossaman stated that the stipulation was not accepted by the Registrar. Mr. Nossaman testified that Sun Country was very anxious to comply with the terms of the Registrar’s June 18, 2012 Order but was unable to gain access to Ms. Burgener’s residence during the month of July, 2012. Mr. Nossaman testified that when Sun Country was granted access to Ms. Burgener’s residence on August 14, 2012, Sun Country fully intended to fully comply with all the requirements of the Registrar’s June 18, 2012 Order. Mr. Nossaman stated that Sun Country retained Ms. Sures to inspect Ms. Burgener’s tile floor and to mark each tile that would have to be replaced. Mr. Nossaman testified that Ms. Sures marked twenty-nine (29) floor tiles for replacement. Mr. Nossaman testified that the removal of the twenty-nine (29) floor tiles would necessarily have caused some adjacent floor tiles to be damaged. Mr. Nossaman stated that all damaged floor tiles would have been replaced. Mr. Nossaman testified that, once all of the marked floor tiles and any damaged adjacent tiles were removed and replaced, the entire tile floor in Ms. Burgener’s residence would have fully complied with the terms of the Registrar’s June 18, 2012 Order. Mr. Nossaman testified that Sun Country was not allowed access to Ms. Burgener’s residence until August 14, 2012. Mr. Nossaman stated that on August 14, 2012, Ms. Burgener was not willing to allow Sun Country to perform corrective work in her residence unless Sun County agreed to remove and replace her entire tile floor. Mr. Nossaman testified that when Sun Country refused to remove and replace the entire tile floor Ms. Burgener denied Sun Country access to her residence to perform any corrective action on the tile floor. Mr. Nossaman acknowledged that he was not present at Ms. Burgener’s residence on August 14, 2012. Mr. Nossaman stated that several of Sun Country’s employees were present at Ms. Burgener’s residence on August 14, 2012. Mr. Nossaman testified that the Registrar’s June 18, 2012 Order did not require the removal and replacement of Ms. Burgener’s tile floor. Mr. Nossaman’s testimony is found to be credible. CONCLUSIONS OF LAW 1. Sun Country bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s June 18, 2012 Order or that Ms. Burgener failed to provide reasonable access for Sun Country to do so.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] 2. The Registrar’s June 18, 2012 Order required Sun Country to comply with terms of the Order by July 28, 2012. Ms. Burgener did not allow Sun Country access to her residence until August 14, 2012. On that date Ms. Burgener disagreed with Sun Country’s proposed method of complying with the terms of the Registrar’s June 18, 2012 Order and denied Sun Country reasonable access to her residence to complete the corrective action required by the Registrar’s Order. This Tribunal concludes that Ms. Burgener denied Sun Country reasonable access to her residence to perform the corrective action in the Registrar’s June 18, 2012 Order, and that Sun Country was precluded from complying with the terms of the Registrar’s Order by Ms. Burgener’s denial of access. RECOMMENDed order In view of the foregoing, it is recommended that no suspension shall be imposed on Sun Country’s License No. KB-1.228518-D, 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 40 days from the date of the certification

Done this day, October 11, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. C-30 (6/29/12 Stipulation to Extend Time). [2] See Exhibit No. C-31 (7/20/12 Letter). [3] See Exhibit C-28 (6/18/12 Order). [4] See Exhibit Nos. R-3 (6/20/12 Fax) and R-4 (6/21/12 Fax). [5] See Exhibit No. R-6 (Stipulation to Extend Effective Date). [6] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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