ALJDEC decisions subject to certification as final

2011A-817-ROC · Registrar of Contractors · 2012-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 3, 2012

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by corporate President and Qualifying Party Sherry Matzdorff.

WITNESSES: Cliff Corlett, ROC Inspector Terry Dwyer Sherry Matzdorff

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent has complied with a Default Decision and Order (Default Decision) issued by the Registrar of Contractors (“Registrar” or “ROC”). The Default Decision required Respondent to perform corrective work as described in the complaint filed by Complainant and a Corrective Work Order (“CWO”) issued by the Registrar. At hearing, Complainant alleged that Respondent was not in compliance. Respondent denied the allegation. Procedural Background On June 27, 2011, the Registrar issued a Default Decision that gave Respondent until August 6, 2011, to comply with the complaint and the CWO in this matter or have its license revoked. After the Default Decision was issued, Respondent filed a written statement with the Registrar making claims that the Registrar treated as a request for rehearing. Complainant responded by stating that the case was unresolved. In February 2012, the Registrar denied rehearing and set this case for a compliance hearing. Introduction The Registrar’s February 1, 2012, Order Setting Compliance Hearing states that the hearing is to determine “whether or not Respondent has fully complied with the terms set forth in the [Default Decision].” This tribunal entered the full complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Default Decision. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent is not in compliance and recommending revocation of the license contingent upon a payment of restitution to Complainant. FINDINGS OF FACT 1. Respondent is the holder of License No. B.229291-R, a general residential contracting license issued by the Registrar. The license authorizes Respondent to operate as a general contractor for residential projects. Sherry Lynn Mills Matzdorff is the Qualifying Party. 2. In February 2011, Complainant filed her complaint in this matter. She filed a completed Registrar complaint form, along with a packet of documents outlining and detailing numerous complaints regarding workmanship issues and money disputes with Respondent. The Registrar’s complaint form has a box on page two that asks the question, “What do you want the contractor to do to resolve your complaint?”[1] This provides an opportunity for a complainant to state what type of action they want a contractor to take. Complainant wrote “See below” in that box, referring the reader to the packet attached to the form. Complainant organized her packet into four sections. Section 1 contains general allegations about Respondent’s business practices, which Complainant called “Introduction and Overview.” Section 2 is called “Complaints“ and contains workmanship items.[2] The workmanship items were incorporated into the CWO later issued by ROC Inspector Cliff Corlett.[3] Section 3 is called “Allowances,” but there is no clear statement of what Complainant wanted Respondent to do because of those allegations. Instead, there is a general statement that Respondent should “reimburse or complete job,” but no specific statement as to the amount of reimbursement or what it would take to complete the job. Finally, Section 4 is called “Unwarranted charges” and lists four specific amounts alleged as overcharges for paint, “island backsplash,” “counter backsplash,” and “backsplash border.” Complainant specifically requests reimbursement of those amounts, which total $770.76. 3. On March 8, 2011, Inspector Corlett issued a CWO in this case that stated his findings upon inspection of the workmanship items in the complaint. That CWO ordered Respondent to correct painting in three areas (Item 6): touch-up throughout the house, peeling at the front door, and incomplete painting on the garage door face. 5. Respondent defaulted by failing to timely answer a Citation and Complaint issued by the Registrar on April 26, 2011. The Default Decision in this case found Respondent in violation of “the provisions of A.R.S. § 32-1154 as charged in the Citation and Complaint.” Therefore, the Registrar ordered Respondent to “accomplish[ ] the corrective work involved and detailed in the Complaint and the agency’s written directive. . . .” This tribunal finds that the CWO clearly directed Respondent to correct the paint items, which Respondent did. 4. At the compliance hearing, Inspector Corlett testified that the paint corrections had been done by Respondent. 6. This tribunal finds that the only correction “detailed” in the complaint is the request for reimbursement of $770.76. Respondent has not accomplished that correction. / / / / / / CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Since the Default Decision required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the Default Decision.[6] Respondent has not met that burden. 2. As found above, Respondent complied with the CWO. However, Respondent did not comply with the complaint, which stated that Complainant was due $770.76, and to which Respondent, by default, admitted. Respondent should have paid that amount to Complainant. 3. This tribunal finds that the appropriate sanction in this matter is to revoke Respondent’s license unless Respondent pays Complainant $770.76. If Respondent does so, the revocation should not take place and the case should close. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.229291-R held by Respondent L and S P C dba Magic Homes, be revoked on the effective date of the Registrar’s Compliance Order unless the Registrar receives written proof of payment to Complainant of the sum of $770.76 in certified funds, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Compliance Order, the license revocation shall not take place and case 2011-817 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 40 days from the date of that certification.

Done this day, April 20, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Arizona Registrar of Contractors Complaint Form for Licensed and Unlicensed Contractors, Section 4. Complaint Information. [2] There were also workmanship allegations in Section 1. [3] Complainant stated that she wanted Respondent to “Rectify these complaints in a timely manner with professional workmanship to my satisfaction.” [4] Arizona Administrative Code (A.A.C.) R2-19-119(B). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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