ALJDEC decisions subject to certification as final

2014A-4939-ROC · Registrar of Contractors · 2015-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 2015, at 1:00 a.m. APPEARANCES: Janet Louise Riggs (“Complainant”) appeared on her own behalf; The Rehab Team LLC (“Respondent”) appeared through Timothy Michael Evans, its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about April 30, 2013, the Registrar of Contractors (“the Registrar”) issued License No. B-3.284745-R for residential general remodeling and repair contracting to Respondent. On or about June 8, 2014, the Registrar suspended Respondent’s license for lack of bond. 2. On or about December 8, 2014, Complainant filed a complaint with the Registrar against Respondent’s license, alleging that it had failed to properly install flooring, a tub surround, and wall tiles pursuant to its contract to perform certain remodeling at her residence. 3. The Registrar’s Investigator Timothy Pennington performed a jobsite inspection at Complainant’s residence, which Complainant and Respondent’s representative attended. On or about January 7, 2015, Investigator Pennington on behalf of the Registrar issued a directive that required Respondent on or before January 23, 2015, to correct the wood flooring that was cupping and buckling, the cracked tile on the bathroom walls, and the loose shower trim at Complainant’s residence. The January 7, 2015 directive noted that because Respondent’s license was administratively suspended, 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. Investigator Pennington subsequently performed a compliance inspection at Complainant’s residence. Because none of the items on the directive had been corrected and Complainant indicated that Respondent had not otherwise resolved the complaint, Investigator Pennington forwarded the matter to the Registrar’s Legal Department. 5. On or about May 14, 2015, the Registrar issued a Citation for a charged violation of A.R.S. § 32-1154(A)(3)[1] and A.A.C. R4-9- 108.[2] 6. On or about June 1, 2015, Respondent filed a written answer to the Citation. Respondent did not dispute the January 7, 2015 directive or allege that its work at Complainant’s residence did not require correction, although it did allege that Complainant’s requirements were exacting, that its members were surprised by her complaint, and that Respondent could not afford to replace the floor. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. An evidentiary hearing was held on August 25, 2015. 9. Investigator Pennington testified consistently with the January 7, 2015 directive. 10. Complainant testified that she had obtained two bids to repair the floor and that both contractors informed her that the whole floor needed to be replaced with an American-made product. 11. Respondent’s qualifying party and managing member, Timothy Evans, and member, Heather Zappa, testified. Respondent’s representatives did not dispute that certain parts of job required correction, but disputed that the entire floor needed to be replaced. CONCLUSIONS OF LAW The administratively suspended 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.[3] This matter lies within the Registrar’s jurisdiction.[4] Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Respondent’s members acknowledged that Respondent had failed to properly install the floor, tub surround, and wall tile so that they complied with the Registrar’s and industry standards. Therefore, Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3) and A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. B-3.284745-R of The Rehab Team LLC 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, August 25, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, 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.” [2] 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.” [3] 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 . . . .” [4] See A.R.S. § 32-1154(A). [5] 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). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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