ALJDEC decisions subject to certification as final

2014A-1387-ROC · Registrar of Contractors · 2014-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2014 APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier. James Sullivan appeared on behalf of Respondent Sun N Fun Construction LLC. ADMINISTRATIVE LAW JUDGE: Tammy Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.280824-R to Sun N Fun Construction LLC (“Respondent”). On or about May 30, 2013, the Registrar received a Complaint against Respondent from Kim S. Osmus alleging poor work by Respondent in the performance of its December 2011 contract to remodel Ms. Osmus’ residence located at 1485 N. Hidden Glen Road, Tucson, Arizona. On or about July 16, 2013, the Registrar conducted a jobsite inspection and on August 5, 2013, issued a Corrective Work Order directing Respondent to take appropriate corrective action to address a number of issues at Ms. Osmus’ residence. Respondent failed to take appropriate corrective action to comply with the Registrar’s August 5, 2013 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). At the time of the hearing, James Sullivan, the Qualifying Party for Respondent, stipulated to the factual allegations contained in the Citation and Notice of Hearing. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 8, 2014. Such prior License record reflects that Respondent’s License No. B.280824-R has not had any prior complaints against it. 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 parties stipulated 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 parties stipulated that Respondent did not make any attempt to comply with the Corrective Work Order in violation of 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 Sun N Fun Construction LLC’s License No. B.280824-R for a period of three 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, July 8, 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.”

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

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