ALJDEC decisions subject to certification as final

2012A-698-ROC-com · Registrar of Contractors · 2013-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2013, at 8:00 a.m. APPEARANCES: Gary and Melissa Schumacher (hereinafter “Complainants”) appeared through Melissa Schumacher. Casas Bonitas Development LLC (hereinafter “Casas”) 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 Denying Request for Rehearing/Order Setting Compliance Hearing provides, in pertinent part, as follows: IT IS FURTHER 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 the Complainants’ receipt of a full refund of the monies they paid to Respondent constitutes sufficient restitution to Complainants and whether such restitution should constitute compliance with the terms of the Corrective Work Order issued in this matter.

If it is determined that Respondent has not complied with the terms of the Registrar’s Corrective Work Order, absent unreasonable interference on the part of Complainants, Respondent’s B.214567-R License shall be subject to immediate revocation.

If it is determined that Complainants unreasonably interfered with Respondent’s ability to comply with the terms of the Corrective Work Order, then Respondent’s License shall not be revoked for failure to comply with the Corrective Work Order and Respondent’s License shall be placed on disciplinary probation for 60 days.

Note: Respondent is reminded that it must pay the outstanding $500.00 civil penalty assessed by the Registrar in its September 11, 2012 Order. Such penalty must be paid within days from the effective date of this Order or Respondent’s License will be automatically revoked.

Respondent is further reminded that it must submit proof, acceptable to the Registrar, on or before the effective date of this Order that it has brought its written agreements into full compliance with A.R.S. § 32-1158. If such proof is not submitted to and accepted by the Registrar, then Respondent’s License shall be revoked.

This Order constitutes a final administrative decision reviewable pursuant to the provisions of A.R.S. §12-901 et seq., and the previously entered Order will be in full force and effect on January 16, 2013, unless a Stay Order is secured from Superior Court on or before said date.

2. The assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), testified that he conducted a prehearing Compliance Inspection on March 5, 2013. Inspector Grochocki stated that he found that Complainants had hired a new licensed contractor to install new cabinetry in their residence. Inspector Grochocki testified that Complainants’ credit card company had refunded to Complainants’ credit card account all the money that Complainants had paid to Casas. Inspector Grochocki stated that he was unable to determine if Complainants’ receipt of a full refund of the monies they paid to Casas constituted compliance with the terms of the Corrective Work Order issued in this matter.[1] 3. Melissa Schumacher (hereinafter “Ms. Schumacher”) testified that she filed a dispute with her credit card company and that her credit card company refunded the $16,318.54 that Complainants had paid to Casas. Ms. Schumacher testified that when Casas failed to comply with the terms of the Registrar’s September 11, 2012 Order, Complainants retained a replacement licensed contractor to perform the corrective action required by the Registrar’s September 11, 2012 Order. Ms. Schumacher stated that Complainants paid a total of $21,124.07 for materials and labor to have the corrective work performed by the replacement licensed contractor. Ms. Schumacher testified that no extra work was performed and no upgrades were installed as part of the work performed by the replacement contractor. Ms. Schumacher stated that Complainants were required to pay an additional $4,805.53 above the amount of money that was refunded by Complainants’ credit card company. Ms. Schumacher testified that amount of money that was refunded to Complainants’ account by their credit card company was insufficient to cover the cost of complying with the terms of the Registrar’s September 11, 2012 Order.[2] 4. Gary Schumacher (hereinafter “Mr. Schumacher”) testified that when the replacement contractor performed the corrective work on Complainants’ residence, the replacement contractor found numerous areas of unsafe unlicensed electrical work performed by Casas. Mr. Schumacher stated that in order to save money, he personally removed the cabinets installed by Casas. Mr. Schumacher testified that he should be reimbursed for his personal time spent on the correction of Casas’ construction work at Complainants’ residence. Mr. Schumacher stated that Complainants should be reimbursed for the additional $4,805.53 that Complainants were required to spend to have the replacement contractor comply with the terms of the Registrar’s September 11, 2012 Order.[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. Complainants paid a total of $21,124.07 to have the corrective work required by the Registrar’s September 11, 2012 Order performed by a replacement licensed contractor. No extra work was performed and no upgrades were installed as part of the corrective work. Complainants paid an additional $4,805.53 above the amount of money that was refunded by Complainants’ credit card company to complete the corrective work required by the Corrective Work Order and the Registrar’s September 11, 2012 Order. Complainants’ receipt of a full refund of the monies that Complainants paid to Casas does not constitute full compliance with the terms of the Corrective Work Order and the Registrar’s September 11, 2012 Order. 4. Casas failed to present evidence at the compliance hearing and Complainants credibly established that they paid an additional $4,805.53 above the amount of money that was refunded by Complainants’ credit card company to complete the corrective work required by the Corrective Work Order and the Registrar’s September 11, 2012 Order. Therefore, this Tribunal concludes that Casas did not establish that it complied with the terms of the Corrective Work Order and the Registrar’s September 11, 2012 Order. RECOMMENDed order In view of the foregoing, it is recommended on Compliance Hearing that License No. B.214567-R of Casas 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 40 days from the date of the certification. Done this day, March 19, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 3/6/13 Hearing Record (hereinafter “H.R.”) at 4:55-11:27. [2] H.R. at 11:35-25:17. [3] H.R. at 25:23-28:07.

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