ALJDEC decisions subject to certification as final

2014A-3516-ROC · Registrar of Contractors · 2015-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 2015 APPEARANCES: Complainant Ruth Gloria appeared telephonically on her own behalf. Respondent Abraham Perez Sevilla dba Abe’s Cabinet Shop also appeared telephonically, but voluntarily disconnected the call before hearing was concluded. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. On or about January 11, 1990, the Registrar of Contractors (“the Registrar”) issued License No. 085132 for finish carpentry to Respondent. On or about January 1, 2013, the Registrar suspended Respondent’s license. On or about January 1, 2014, Respondent voluntarily permitted his license to expire. 2. On or about September 3, 2014, Complainant filed a complaint with the Registrar against Respondent’s license, alleging that Respondent had abandoned his work remodeling her kitchen cabinetry. The complaint indicated the work began on September 4, 2012, and ended December 31, 2012. The complaint also alleged that Respondent’s work was poorly done. 3. The Registrar’s Investigator Cort Bacon performed a jobsite inspection at Complainant’s residence. On or about September 30, 2014, Inspector Bacon on behalf of the Registrar issued a directive that required Respondent on or before October 17, 2014, to finish and/or correct certain aspects of his cabinetry work at Complainant’s residence. The September 30, 2014 directive noted that if Respondent’s license was expired, it could not perform or subcontract to another contractor the corrective work and that the only available resolution was a financial settlement with Complainant. 4. No financial settlement was reached and Investigator Bacon forwarded the matter to the Registrar’s Legal Department. 5. On or about May 21, 2015, the Registrar issued a Citation for charged violations of A.R.S. § 32-1154(A)(1)(abandonment), A.R.S. § 32-1154(A)(3), A.A.C. R4-9-108 (minimum construction standards), and A.R.S. § 32-1154(A)(22) (failure to comply with a directive). 6. On or about June 4, 2015, Respondent filed a written answer to the Citation. Respondent indicated he could not comply with the directive because his license was first suspended and then expired. He noted that when his license was active, the lack of an electrical box in the kitchen had prevented him from completing the job, 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A hearing was convened on November 10, 2015. Prior to the presentation of evidence, Respondent voluntarily conceded the existence of the cited violations on the record. No further evidence was taken. 9. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 10, 2015. Such prior License record reflects that Respondent’s License No. 085132 was suspended both for recovery fund payout (August 15, 2013) until compliance (January 30, 2013) and nonrenewal (January 1, 2013-December 31, 2013) and that it later expired. (January 1, 2014). Such prior License record also reflects that there were one open complaint, and one previous complaint that resulted in discipline against Respondent’s License No. 085132. CONCLUSIONS OF LAW The expired status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[1] This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish cause to discipline Respondent’s license 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] Respondent conceded the existence of all the cited violations. He said he did not intent to fight any discipline that might be imposed. Therefore, Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1) (abandonment), A.R.S. § 32-1154(A)(3), A.A.C. R4-9- 108 (minimum construction standards), and A.R.S. § 32-1154(A)(22) (failure to comply with a directive). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 085132 of Abraham Perez Sevilla DBA Abe’s Cabinet Shop shall be revoked. 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, November 19, 2015. /s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(D). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [2] See A.R.S. § 32-1154(A). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); 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).

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

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