ALJDEC decisions subject to certification as final

2016A-3008-CHC-ROC · Registrar of Contractors · 2017-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronald H Thompson,

COMPLAINANT,

v.

Tapia's Tuff Roofs LLC,

License No: 240271

RESPONDENT.

No. 2016A-3008-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 22, 2017, 1:00 P.M.

APPEARANCES: Trinidad Tapia on behalf of Respondent; no appearance on behalf of Complainant

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. Tapia's Tuff Roofs LLC (Respondent), is the holder of

License Number 240271 issued by the Registrar of Contractors (Registrar).

2. On or about August 15, 2016, Ronald H. Thompson (Complainant), filed a Complaint against Respondent with the Registrar. Complainant alleged that Complainant and Respondent entered into a contract on January 14, 2014, wherein Respondent was to apply a torch down roll roofing over the then-existing roof of Complainant’s commercial premises for a contract price of $17,760.00. The contract provided for a three year warranty, and Complainant alleges that there has been numerous water leaks since the work was performed.

3. The Registrar issued three separate Directives dated September 21, 2016, January 10, 2017, and February 6, 2017, requiring Respondent to repair various components of the job and to repair water damage resulting from the leaks.

On June 9, 2017, the Registrar issued a Citation to Respondent for alleged violation of A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum construction standards) and of A.R.S. § 32-1154(A)(22) (failure to perform corrective action).

4. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for August 22, 2017, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Complainant on or about June 30, 2017, at his address of record.

5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

6. A hearing was held on August 22, 2017, at 1:00 P.M. Trinidad Tapia testified on behalf of Respondent.

7. Although the commencement of the hearing was delayed approximately 30 minutes, Complainant did not appear at any time during the hearing. Complainant further did not request to appear telephonically and did not request that the hearing be postponed or rescheduled.

8. Even though Complainant did not attend the hearing, Respondent was permitted to make a statement. Trinidad Tapia testified on behalf of Respondent that Respondent had performed all corrective action required of it and that there were no further issues with Complainant’s roof.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994); see also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

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.

5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”

6. As Complainant did not attend the hearing to present any evidence, he consequently did not meet his burden of proof to demonstrate that Respondent has violated any statutes in question.

7. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1) and (A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2016A-3008 shall be dismissed.

. In the event of certification of this 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 the certification.

Done this day, August 28, 2017.

___/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors