ALJDEC decisions subject to certification as final

2016A-1152-ROC · Registrar of Contractors · 2016-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wilhelm Klemm,

COMPLAINANT,

v.

Sean Eugene Ferguson

DBA: JW Paving,

License No. CR69.282385-D,

RESPONDENT.

No. 2016A-1152-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2016, at 1:00 p.m.

APPEARANCES: Wilhelm Klemm (“Complainant”) appeared on his own behalf; Sean Eugene Ferguson DBA: JW Paving (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about December 11, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR69.282385-D for dual asphalt paving to Respondent. Respondent’s address of record is 2004 E. Irvington Rd. #144, Tucson, Arizona 85714-1809.

On or about April 8, 2016, Complainant filed a complaint with the Registrar against Respondent, alleging that Respondent had performed poor work on his contract to resurface the driveway at Complainant’s residence at 5015 N. Fort Buchanan Trail, Tucson, Arizona 85750.

Complainant attached to his complaint a copy of Respondent’s contract. The contract did not include the date the parties entered the contract or an estimated date of completion and did not advise Complainant had he had a right to file a complaint with the Registrar for Respondent’s alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A) and did not include the Registrar’s telephone number or website address.

The Registrar assigned the matter to its Investigator, Arlo Houston (“Investigator Houston”), for investigation. On May 27, 2016, Investigator Houston performed a jobsite inspection. On June 22, 2016, Investigator Houston on behalf of the Registrar issued a Directive that required Respondent to perform certain repairs on or before 5:00 p.m. on July 8, 2016, in relevant part as follows:

1. “Driveway is irregular & bumpy.” The asphalt driveway has an area to the right of the garage in front of the gate that has two depressions with cracks. The driveway has areas of loose material that is not compacted well along both sides and at apron, areas of inadequate coverage where asphalt is thin, areas of inadequate surface preparation with rocks pressed into driveway, area of inadequate surface preparation with wood pressed into driveway and areas with cracks.

2. The respondent’s contract does not meet the statutory requirements listed in ARS 32-1158.B. The respondent is to submit a compliant contract within the time frame listed.

Respondent did not submit to the Registrar a contract that complied with A.R.S. § 32-1158(B). Investigator Houston verified with Complainant that Respondent had not done any work to comply with the June 22, 2016 Directive.

Investigator Houston sent the complaint to the Registrar’s Legal Department. On or about July 22, 2016, the Registrar issued a Citation that charged cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation in which he did not deny the charged violations, but asserted that he had tried to contact Complainant by telephone but had not been successful. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent State agency, for an evidentiary hearing.

On or about August 9, 2016, the Registrar issued a Notice of Hearing, setting a telephonic hearing from the Registrar’s office in Tucson. The Notice of Hearing advised Respondent that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Registrar sent the Notice of Hearing to Respondent at his address of record.

The Administrative Law Judge (“ALJ”) continued the hearing to November 1, 2016, at 1:00 p.m. at Complainant’s request. Staff at OAH sent the order continuing the hearing to Respondent’s address of record.

A telephonic hearing was held on November 1, 2016, from the Registrar’s office in Tucson. Complainant and Investigator Houston testified to establish that the asphalt driveway that Respondent constructed at Complainant’s residence did not comply with the Registrar’s and industry standards and that Respondent had not performed any work to comply with the Registrar’s June 22, 2016 Directive to repair the driveway.

Respondent did not request to appear telephonically at either hearing date and never requested that the hearing be again continued. Although the hearing did not conclude for thirty minutes, Respondent did not appear personally or through an attorney. Consequently, Respondent did not present any evidence to defend his license.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website. The Registrar imposed finite disciplinary suspensions between February 29, 2016, and March 9, 2016, between April 18, 2016, and April 18, 2016, and between September 6, 2016, and September 17, 2016, and on October 12, 2016, revoked Respondent’s license. Respondent’s poor license history is considered as a factor in aggravation of the recommended penalty in this matter.

CONCLUSIONS OF LAW

The revoked status of Respondent’s license does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent and the order setting the continued hearing that OAH sent to Respondent at his address of record were reasonable and he is deemed to have received notice of the continued hearing.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s license under the charged provisions of A.R.S. § 32-1154(A) by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Complainant established that Respondent failed to comply with the Registrar’s and industry standard in the asphalt driveway he constructed at Complainant’s residence. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainant also established that Respondent failed to comply with the Registrar’s June 22, 2016 Directive. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

The record in this matter also established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). However, given the current revoked status of Respondent’s license, the ALJ does not recommend any additional penalties as a result of the violation. Given Respondent’s failure to appear at the duly noticed continued hearing, it does not appear that at this time, Respondent can be regulated.

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 revoked.

It is further recommended that Respondent be required to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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 final order, Respondent’s license shall be revoked, 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 five days from the date of that certification.

/ / / /

Done this day, November 1, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors