ALJDEC decisions subject to certification as final

2012A-1259-ROC-com · Registrar of Contractors · 2013-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2013, at 1:00 p.m. APPEARANCES: Suzanne and Dean McAlister (hereinafter “Complainants”) appeared through Suzanne McAlister. Jesus Humberto Monreal dba J and M Stucco (hereinafter “Respondent” or “J and M”) appeared on his own behalf. A Spanish/English speaking interpreter was present for the hearing. 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 October 12, 2012, the Registrar issued an Order providing that Respondent’s K-36.214594-D License would be suspended on the effective date of the Order until Respondent submitted written proof to the Registrar that Respondent had fully complied with the terms of the written Corrective Work Order issued in this matter. If Respondent submitted written proof to the Registrar, and the Registrar accepted such proof, that Respondent had fully complied with the terms of the written Corrective Work Order issued in this matter on or before the Order’s effective date, then Respondent’s K-36.214594-D License would not be suspended and this matter would be closed. The Order further required that Respondent pay a $250.00 civil penalty to the Registrar on or before the expiration of thirty (30) days after the effective date of the Order or risk the revocation of its K-36.214594-D License. The Order had an effective date of November 21, 2012.

On or about October 17, 2012, Complainants submitted written correspondence in this matter with the Registrar providing that Complainants have tried to contact Respondent to discuss settlement by having Respondent pay a licensed contractor that Complainants have chosen to re-do the work that Respondent was unable to complete.

On or about October 29, 2012, Respondent paid the $250.00 civil penalty to the Registrar in accordance with the terms of the Registrar’s October 12, 2012 Order.

On or about November 7, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining that Complainant Suzanne McAlister “refuses to let [Respondent] comply with any [ROC] work orders and has hired a different stucco contractor to do the work.”

On or about November 13, 2012, Complainants submitted written correspondence in this matter with the Registrar providing that Complainants requested a response from Respondent regarding arrangements to finance a new stucco finish for Complainant’s house.

In view of the foregoing, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled 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 Complainants 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 by Complainants.

Note: A review of the Registrar’s Licensing records reveals that Respondent’s K-36.214594-D License was voluntarily cancelled on or about August 1, 2012. On or about that same date, the Registrar issued License No. K-36.278157-D to J and M Stucco, LLC, for which Respondent is the qualifying party. On or about July 17, 2012, J and M Stucco, LLC filed with the Registrar a written assumption, bearing Respondent’s notarized signature, for the liability for all complaints, repairs, receipt of citations, filing of answers and appearance at hearings on all present and future charges and claims, as well as other matters of compliance arising from the business operations of Respondent’s K-36.214594- D License. This assumption explicitly provided that any discipline imposed upon Respondent’s K-36.214594-D License would be automatically and properly imposed by operation of law upon License No. K-36.278157-D of J and M Stucco, LLC.

If it is determined that Respondent failed to comply with the terms of the Registrar’s October 12, 2012 Order, absent unreasonable interference by Complainants, Respondent’s K- 36.214594-D License and J and M Stucco, LLC’s K-36.278157-D License shall be subject to the immediate imposition of discipline.

If it is determined that Complainants unreasonably interfered with Respondent’s attempts at compliance or denied Respondent the ability to comply with the terms of the October 12, 2012 Order, then no discipline shall be imposed upon Respondent’s K-36.214594-D License and J and M Stucco, LLC’s K- 36.278157-D License and this matter shall be closed.

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 assigned Registrar Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), testified that he conducted a pre-hearing Compliance Inspection on March 18, 2013. Inspector Grochocki observed that no corrective work had been performed on Complainants’ residence. Inspector Grochocki testified that Complainants stated that J and M had not been denied access to their residence to perform corrective work on their residence. Inspector Grochocki stated that J and M’s representative, Chris Torres (hereinafter “Mr. Torres”), stated that J and M had been denied access to Complainants’ residence.[1] 3. Suzanne McAlister (hereinafter “Ms. McAlister”) testified that no corrective work on the exterior stucco on Complainants’ residence had been performed. Ms. McAlister stated that J and M falsely reported to the Registrar of Contractors that J and M had been denied access to Complainants’ residence because J and M knew that it was incapable of performing satisfactory corrective work on Complainants’ residence. Ms. McAlister testified that Complainants found that License No. K-36.214594- D of J and M had been canceled. Ms. McAlister testified that Complainants were then informed that a new contractor’s license had been issued to Mr. Monreal and that the directed corrective work could be performed under the new contractor’s license. Ms. McAlister stated that J and M failed to respond to Complainants’ repeated written attempts to contact J and M. Ms. McAlister denied that Complainants had denied access to J and M and testified that J and M made no attempt to comply with the Registrar’s October 12, 2012 Order.[2] 4. Ms. McAlister testified that she believed that J and M deliberately chose not to comply with the Registrar’s October 12, 2012 Order. Ms. McAlister stated that Complainants were willing to comply with the Registrar’s Order and allow J and M a third attempt to correct its deficient exterior stucco work on their residence although “it would have been difficult to watch.” Ms. McAlister testified that J and M failed to contact Complainants despite Complainants’ repeated attempts to contact J and M. Ms. McAlister stated that J and M made no attempt to contact Complainants after the Registrar’s October 12, 2012 Order was issued.[3] 5. Mr. Torres testified that he misunderstood the language in the October 12, 2012 Order. Mr. Torres stated that he believed that Complainants no longer wanted J and M on Complainants’ property because they were not willing to engage in settlement negotiations at the disciplinary hearing for this matter. Mr. Torres testified that he believed that Mr. Monreal’s son contacted Complainants telephonically and attempted to reach a financial resolution with Complainants. Mr. Torres stated that he personally called Complainants and was informed that Complainants wanted to wait for the hearing. Mr. Torres testified that he was not a member of J and M Stucco, LLC. Mr. Torres acknowledged that he did not make an offer to Complainants for J and M to perform corrective work on Complainants’ residence.[4] 6. Mr. Monreal testified that he told his son to contact Complainants and attempt to reach a financial resolution. Mr. Monreal stated that Complainants were concerned about how J and M would obtain financing. Mr. Monreal testified that he was in charge of doing the stucco work on Complainants’ residence and that Mr. Torres was in charge of the project. Mr. Monreal stated that he did everything Mr. Torres instructed him to do. Mr. Monreal testified that if he had understood that J and M could return to Complainants’ residence and perform corrective work on Complainants’ residence, the corrective work would have been performed. Mr. Monreal stated that he did not understand the terms of the Registrar’s October 12, 2012 Order. Mr. Monreal testified that his English “is not good.” Mr. Monreal acknowledged that he made no attempt to have the Registrar’s October 12, 2012 Order explained to him.[5] 7. Mr. Monreal testified that he would like to complete the corrective work on Complainants’ residence. Mr. Monreal stated that he remembers receiving two or three letters from Complainants. Mr. Monreal testified that his son attempted to contact the Complainants telephonically. Mr. Monreal stated that he did not remember the date that the telephone call was allegedly made. Mr. Monreal testified that Mr. Torres did not tell him not to return to Complainants’ residence.[6] 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. J and M failed to perform any corrective work on Complainants’ residence. J and M failed to contact Complainants to offer to comply with the terms of the Registrar’s October 12, 2012 Order. There was no credible evidence that Complainants denied J and M reasonable access to their residence. This Tribunal concludes that J and M failed to comply with the terms of the Registrar’s October 12, 2012 Order. 4. J and M’s K-36.214594-D License was voluntarily cancelled on or about August 1, 2012. On or about that same date, the Registrar issued License No. K-36.278157-D to J and M Stucco, LLC, for which Mr. Monreal is the qualifying party. On or about July 17, 2012, J and M Stucco, LLC filed with the Registrar a written assumption, bearing Mr. Monreal’s notarized signature, for the liability for all complaints, repairs, receipt of citations, filing of answers and appearance at hearings on all present and future charges and claims, as well as other matters of compliance arising from the business operations of J and M’s K-36.214594-D License. This assumption explicitly provided that any discipline imposed upon J and M’s K-36.214594-D License would be automatically and properly imposed by operation of law upon License No. K-36.278157-D of J and M Stucco, LLC. 5. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing that License No. K-36.214594-D of J and M, and License No. K-36.278157-D of J and M Stucco, LLC 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 five days from the date of the certification. Done this day, March 29, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 3/19/13 Hearing Record (hereinafter “H.R.”) at 21:40-30:18. [2] H.R. at 37:14-50:50. [3] H.R. at 50:51-58:01. [4] H.R. at 58:52-1:08:40. [5] H.R. at 1:08:51-1:13:50. [6] H.R. at 1:13:51-1:17:45.

-----------------------

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