ALJDEC decisions subject to certification as final

2013A-5423-ROC · Registrar of Contractors · 2014-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2014 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Michael Raine. Respondent Kenneth Doyle Curry appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 42.156783-R to Kenneth Doyle Curry doing business as Falcon Roofing (“Respondent”). On October 29, 2012, the Registrar received a Complaint against Respondent from Dave and Kitty Minor alleging poor work by Respondent while replacing the roof of the Minors’ residence located at 960 West Moon Valley Drive, Phoenix, Arizona. After the Registrar assigned the Complaint to an inspector, the inspector issued a Corrective Work Order on December 18, 2012, in which Respondent was instructed to correct a variety of issues. Respondent failed to take appropriate corrective action to comply with the Registrar’s December 18, 2012 Corrective Work Order. The Registrar issued a Citation and Notice of Hearing to Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108, and A.R.S. § 32-1154(A)(23). Respondent acknowledged at hearing that the initial work was not performed in a professional and workmanlike manner and that he failed to comply with the Corrective Work Order issued. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 31, 2014. Such prior License record reflects that Respondent’s License No. C-42.156783-R had a prior complaint against it that was resolved or settled. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. The undisputed credible testimony established that Respondent did not replace the roof properly. Therefore, Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[1] 4. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Kenneth Doyle Curry doing business as Falcon Roofing’s License No. C-42.156783-R for a period of 7 days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, March 31, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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