ALJDEC decisions subject to certification as final

2014A-1346-ROC · Registrar of Contractors · 2015-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2015, at 1:00 p.m. APPEARANCES: Jim Fantin (“Complainant”) appeared on his own behalf; Sean Eugene Ferguson DBA: JW Paving (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In December 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR69.282385-D for asphalt paving to Respondent. Respondent’s address of record is 2004 E. Irvington Rd. #44, Tucson, Arizona 85714-1809. On or about March 11, 2014, Respondent contracted to clean, fill cracks, and seal the asphalt driveway at Complainant’s residence at 2802 E. Cloud Rd., Cave Creek, Arizona 85331, for a price of $3,000.00. On April 4, 2014, Complainant filed a complaint with the Registrar alleging that Respondent had failed to satisfactorily perform or complete his contract. The Registrar assigned the complaint to its investigator, Steve Klein (“Investigator Klein”), for investigation. On September 30, 2014, after performing a jobsite inspection, Investigator Klein issued a Directive to Respondent, requiring him to perform the following work prior to October 16, 2014: Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturer’s installation instructions.

On July 14, 2015, the Registrar issued a Citation against Respondent that charged possible cause to revoke, suspend, or otherwise discipline his license under A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(3), namely A.A.C. R4-9- 108. The Registrar mailed the Citation to Respondent at his address of record. Respondent filed a written answer to the Citation, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On October 28, 2015, the Registrar issued a Notice of Hearing setting a hearing via videoconference on December 17, 2015, at 1:00 p.m. from the Registrar’s Tucson office. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. On October 30, 2015, Complainant filed a motion with the OAH requesting that venue be moved to Phoenix because he, the construction project at issue, and Investigator Klein were located in the Phoenix metropolitan area. On November 2, 2015, the Administrative Law Judge (“ALJ”) issued an order, to which was attached Complainant’s motion to change venue, informing Respondent that his response to Complainant’s motion was due on or before November 9, 2015. The OAH sent a copy of the November 2, 2015 order to Respondent’s address on email correspondence with the Registrar. Respondent never responded to Complainant’s motion. On November 10, 2015, the ALJ issued an order changing venue to the Phoenix office of the OAH. A hearing was held on December 17, 2015, at 1:00 p.m. at the Phoenix office of the OAH. Complainant and Investigator Klein testified. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his license. Investigator Klein testified that at the initial August 2014 jobsite inspection, Complainant’s driveway was sealed, but more than 80% of the cracks were not filled. Investigator Klein testified that he performed a compliance inspection on December 12, 2014, and that at that time, nothing had been done to comply with the September 30, 2014 Directive. Investigator Klein testified that he performed a prehearing jobsite inspection on December 10, 2015. The cracks still had not been filled. If anything, the appearance of the jobsite was worse because the seal was coming up. Investigator Klein testified that in his opinion, Respondent had violated the two statutes charged in the Registrar’s Citation. Administrative notice is taken of the Registrar’s public website. On December 10, 2015, Respondent’s license was current and in good standing, but three complaints were pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Hearing that the Registrar mailed to Respondent at his address of record was reasonable and Respondent is deemed to have received notice of the hearing.[2] Respondent is also deemed to have received notice of the order changing venue of the hearing to Phoenix. 3. Complainant bears the burden of proof to establish statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 4. Complainant established that Respondent violated A.R.S. § 32-1154(A)( 1)[5] by abandoning the job and A.R.S. 32- 1154(A)(3),[6] namely A.A.C. R4-9-108,[7] by failing to properly fill the cracks or to properly seal Complainant’s driveway. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Sean Eugene Ferguson DBA: JW Paving’s License No. CR69.282385-D shall be suspended for ten business 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 will be five days from the date of that certification. Done this day, December 17, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [6] 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.” [7] 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.”

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