ALJDEC decisions subject to certification as final

2015A-3061-ROC · Registrar of Contractors · 2016-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2016 APPEARANCES: Steve D’Angelo for Complainant; Dennis Bayless, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 22, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 25, 2016. 2. Respondent Mike Mulcaire Excavating, Inc. (“Mulcaire”) holds license numbers 140819 and 140818 issued by ROC. Michael Steven Mulcaire is Mulcaire’s qualifying party. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation, ROC alleges that Mulcaire may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Mulcaire’s license.[2] 5. Complainant Steve D’Angelo/Main Place Plaza entered an agreement with Mulcaire in which Mulcaire applied a two-inch asphalt overlay and seal coat to Main Street Plaza’s parking lot. 6. On May 5, 2015, Mr. D’Angelo filed a complaint with ROC alleging deficiencies on Mulcaire’s part. 7. In response to Mr. D’Angelo’s complaint, ROC Investigator Jim Dimond conducted a job-site inspection on August 5, 2015, and he issued to Mulcaire a Directive dated September 22, 2015. 8. Mr. Dimond determined that raveling had occurred in the tire paths of several of the parking stalls. Through the Directive, ROC ordered Mulcaire to remedy by appropriate means the raveling. 9. Although Mr. Mulcaire did not agree that the parking lot required any repairs, in response to the Directive he contacted Mr. D’Angelo and proposed that Mulcaire would reseal portions of the parking lot. Alternatively, Mulcaire offered to reimburse Mr. D’Angelo for the cost of sealing ($800.00) so that he could hire a contractor of his own choosing to reseal the parking lot. 10. Mr. D’Angelo was not satisfied with either of Mulcaire’s proposed solutions and he did not allow Mulcaire access to make the ordered repairs. 11. Mr. D’Angelo had introduced into evidence photographs of portions of the parking lot. Mr. Dimond agreed that many of these photographs show areas where raveling has occurred. 12. By Mr. D’Angelo’s count, Mr. Dimond’s testimony showed that there twenty-three locations in which raveling had occurred. In contrast, Mr. D’Angelo testified that Mulcaire had proposed to reseal only seven areas. This evidence is of little to no probative value however, because the sizes of the areas Mulcaire proposed to reseal are not known. Moreover, there was no scale in Mr. D’Angelo’s photographs, but he testified that the numbers/markers in the photographs were about two-inches square. As such, the area in each photograph appears to be less than one square foot, whereas the parking lot is about 3000 square feet. 13. Mr. D’Angelo had introduced into evidence a report by Monty Wilde of Asphalt Management & Consulting, but the author did not personally inspect the parking lot and instead relied on photographs provided by Mr. D’Angelo. Mr. Wilde concluded that there were deficiencies that could be remedied through seal- coating, which in his opinion would have cost about $500.00. 14. Mulcaire had entered into evidence a report prepared by Kenneth Gaines of Western Technologies Inc. Mr. Gaines inspected the parking lot on February 4, 2016 and concluded that it was in good condition and showed no signs of early deterioration. 15. Neither Mr. Wilde nor Mr. Gaines testified at the hearing. 16. Mr. Mulcaire testified as to Mulcaire’s willingness to abide by any order issued by ROC. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. There was no substantial evidence adduced to show that Mulcaire is unscrupulous, unqualified, or financially irresponsible. 9. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 11. The preponderance of the evidence does not show that Mulcaire violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. The evidence of record shows that there are several spots where raveling occurred, but the cause of that raveling has not been proven, and there was no benchmark or standard to which the raveling that has occurred could be compared to determine whether it was within accepted tolerances. 12. The preponderance of the evidence does not show that Mulcaire violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. D’Angelo did not allow Mulcaire access to do the work ROC ordered Mulcaire to complete. 13. Considering the facts and circumstances of this matter, the Citation should be dismissed. RECOMMENDED ORDER IT IS ORDERED that the Citation in Case No. 2015-3061 is dismissed. 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 is forty days after the date of that certification. Done this day, April 8, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on January 20, 2016 or that the Complaint was filed on July 16, 2015. [2] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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