ALJDEC decisions subject to certification as final
2016A-37-ROC · Registrar of Contractors · 2017-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Claudia Bueno,
COMPLAINANT,
v.
Anthony Salvatore Derasmi dba,
Double D's Consulting And Construction,
License No: 272698
RESPONDENT.
No. 2016A-37-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 23, 2017
APPEARANCES: Claudia Bueno on her own behalf; no one appeared for respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On August 4, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 29, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.
The matter was continued and the hearing was rescheduled for 8:30 a.m. January 23, 2017.
Respondent Anthony Salvatore Derasmi dba, Double D's Consulting and Construction (“Double D”) holds license number 272698 issued by ROC. Anthony Salvatore Derasmi is Double D’s qualifying party.
Complainant Claudia Bueno hired Double D to construct an addition to her home in Phoenix.
No representative appeared for Double D on January 23, 2017 and the matter was convened in its absence at about 8:50 a.m.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Through the Citation, ROC alleges that Double D may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), (A)(12), 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 Double D’s license.
On January 4, 2015, Ms. Bueno filed a complaint with ROC alleging workmanship and other deficiencies on Double D’s part.
In response to Ms. Bueno’s complaint, ROC Investigator Timothy Pennington conducted a job-site inspection on February 21, 2016.
Mr. Pennington provided credible testimony that he found forty workmanship violations and three instances where Double D deviated from the plans or specifications.
On March 7, 2016, ROC issued to Double D a Directive that required Double D to correct the deficiencies identified by Mr. Pennington.
The Directive required Double D to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. March 22, 2016.
On May 24, 2016, Mr. Pennington conducted a compliance jobsite inspection. Mr. Pennington provided credible testimony that Double D did not complete all the work ROC ordered it to undertake.
On May 26, 2016, ROC issued to Double D a Directive that required Double D to correct three additional deficiencies identified by the parties during Mr. Pennington’s May 24, 2016 inspection.
The second Directive required Double D to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. June 14, 2016.
On July 8, 2016, Mr. Pennington conducted a compliance jobsite inspection. Mr. Pennington provided credible testimony that Double D had not corrected all three items ROC ordered it to correct in the second Directive.
On July 1, 2016, ROC issued the Citation.
Mr. Pennington conducted a prehearing inspection on September 27, 2016. He provided credible testimony that Double D had not complied completely with the two Directives as there were still items that had not been properly repaired.
Ms. Bueno testified that while the matter was pending, she had entered into a settlement agreement with Double D, but it did not honor that agreement.
CONCLUSIONS OF LAW
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.
“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).
“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).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
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:
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
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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.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Double D deviated from the plans and specification at Ms. Bueno’s home in violation of Ariz. Rev. Stat. section 32-1154(A)(2).
The preponderance of the evidence shows that Double D violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner.
The preponderance of the evidence shows that Double D violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with ROC’s Directives.
The evidence produced at hearing did not demonstrate that Double D violated Ariz. Rev. Stat. section 32-1154(A)(12).
Double D’s failure to appear on January 23, 2017 is considered a factor in aggravation.
Considering the number of Double D’s workmanship violations and its long-standing failure to correct its work, its license should be revoked. In addition, a civil penalty of $250.00 should be imposed for each of Double D’s failures to comply with ROC’s Directives.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Anthony Salvatore Derasmi dba, Double D's Consulting and Construction’s license number 272698 is revoked.
IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Anthony Salvatore Derasmi dba, Double D's Consulting and Construction must pay to the Registrar of Contractors in certified funds a civil penalty of $500.00.
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, February 8, 2017.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors