ALJDEC decisions subject to certification as final

2012A-1633-ROC-com · Registrar of Contractors · 2013-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: October 11, 2013 APPEARANCES: Sandra and Gerald Draxler did not appear. Alpha Bell, L.L.C. was represented by Daniel Olivas. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. Alpha Bell, L.L.C. (“Respondent”) is the holder of License No. K- 37.241836-D issued by the Registrar of Contractors (“Registrar”). Respondent’s contracting license was suspended on December 3, 2012, until Respondent complied with the Registrar’s Order dated October 9, 2012, in the underlying disciplinary case requiring Respondent to investigate and, if necessary, remediate any deficiencies in piping installed at the residence of Sandra and Gerald Draxler (“Complainants”). 2. On September 11, 2013, the Registrar issued a Notice of Compliance Hearing setting the above-captioned matter for a compliance hearing on October 11, 2013, at 1:00 p.m., at the Office of Administrative Hearings in Phoenix, Arizona. Pursuant to the Notice of Hearing, the scope of the compliance hearing was “to determine 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.” 3. On October 10, 2013, at 4:32 p.m., Complainants electronically filed a belated motion to continue the scheduled compliance hearing. Because of the late filing, the motion was scheduled to be addressed as a preliminary matter at the hearing. 4. Complainants failed to appear at the time scheduled for the compliance hearing. After the expiration of a fifteen-minute grace period, the Administrative Law Judge convened the hearing in Complainants’ absence. 5. Complainants’ motion to continue was addressed as a preliminary matter at the hearing. Respondent objected to the continuance request. The motion to continue was denied. 6. The Registrar’s prior order in the underlying disciplinary action required Respondent to timely determine the cause of prior leaks on piping and to correct any deficiencies by appropriate means to avoid the suspension of its contracting license until such remedial work became accomplished. 7. At the hearing, Respondent’s qualifying party and member, Daniel Olivas, testified that Complainants denied Respondent access to their property to comply with the Registrar’s order to perform remedial work in the underlying disciplinary case. Mr. Olivas testified that Respondent sent Complainants four letters by regular U.S. mail from October 2012, to December 2012, seeking access to Complainants’ property in order to perform the required remedial work. On or about February 21, 2013, Respondent sent a certified mailing to Complainants seeking access to their property.[1] The certified mailing was returned to Respondent with a postal stamp that read, “Return to Sender Refused Unable to Forward.” CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this compliance hearing. 2. Respondent bears the burden to establish either that it complied with the Registrar’s directives or that Complainants denied reasonable access for it to do so. See A.A.C. R2-19-119. 3. The evidence of record established that Complainants denied Respondent access to their property necessary for Respondent to comply with the Registrar’s order in the underlying disciplinary action. Therefore, Respondent’s contracting license should not be suspended any longer for failing to comply with the Registrar’s directive to timely determine the cause of the prior leaks on piping and to perform any remedial work by appropriate means. RECOMMENDED ORDER It is recommended commencing on the effective date of the final Order entered in Case No. 2012-1633, and pursuant to the Registrar’s Order dated October 9, 2012, that Respondent’s License No. K-37.241836-D shall be placed on disciplinary probation for ninety (90) days. 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 shall be the date of the certification. Done this day, October 31, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit 1.

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