ALJDEC decisions subject to certification as final
2016A-3804-ROC · Registrar of Contractors · 2017-03-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Patricia Branstetter,
COMPLAINANT,
v.
Beach Ventures Inc,
License No: 186811
RESPONDENT.
No. 2016A-3804-REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 9, 2017.
APPEARANCES: Complainant Patricia Branstetter appeared on behalf of herself. Respondent Beach Ventures, Inc. appeared through Zane Beach, its qualifying party and officer.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On January 25, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on March 9, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Beach Ventures, Inc., (hereinafter “Beach Ventures” or “Respondent”), holds license number 186811 issued by the Registrar.
The January 25, 2017 Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Beach Ventures may have violated A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
In June of 2016, Complainant Patricia Branstetter, (hereinafter “Ms. Branstetter”), entered into a roof construction agreement with Beach Ventures.
Beach Ventures installed a new roof in Ms. Branstetter’s home.
Approximately a week after Beach Ventures completed the work, Ms. Branstetter notified Beach Ventures that corrections needed to be made to the roof.
Beach Ventures went to Ms. Branstetter’s home to make the corrections.
Ms. Branstetter alleged that Zane Beach, (hereinafter “Mr. Beach”), the qualifying party and officer for Beach Ventures, began harassing her about payment.
Ms. Branstetter filed a request for an injunction against Mr. Beach for harassment.
On August 18, 2016, a Judicial Officer of the Maricopa County Justice Courts issued an injunction against Mr. Beach.
The August 18, 2016 Injunction Against Harassment ordered Mr. Beach to have no contact with Patricia Branstetter except through “attorneys, legal process, court hearings.” The injunction was effective one year from the date of service.
On September 26, 2016, the Registrar received a complaint from Ms. Branstetter alleging poor workmanship and other deficiencies on the part of Beach Ventures.
On October 18, 2016, Registrar Investigator Steve Klein, (hereinafter “Mr. Klein”), conducted a job-site inspection in response to the complaint.
On November 1, 2016, Mr. Klein issued to Beach Ventures a Directive dated November 1, 2016.
The November 1, 2016 Directive provides, in relevant part, as follows:
You are hereby directed to repair the following violations by the appropriate means:
Complaint Item 2: Leak in garage
Patch on the roof does not match the existing roof as close as possible and doesn’t meet minimum workmanship standards.
Complaint Item 3: Leak in living room
The roofing cement that was installed at the chimney is a patch that will not last the life of the new roof, and the flashing should be corrected in a professional manner.
Complaint Item 5: Used wrong materials on patio roof.
It appears the roofing that was used is an acceptable material for a low slope roof; however the contract calls for torch down installation.
Complaint Item 7: A/C jacks not sealed properly
A/C electrical roof jack appears to be the original that was reused and improperly shingled over.
Complaint Item 8: Evap. Cooler screws go through shingles.
Verified the evaporative cooler feet are not secured.
Complaint Item 9: Nails showing through over hang
Verified exposed nails under some bays of the eve and not others.
Through the Directive, the Registrar ordered Beach Ventures to remedy the items no later than November 17, 2016.
Beach Ventures did not remedy the items listed in the November 1, 2016 Directive.
Mr. Beach testified that on November 14, 2016, Beach Ventures offered to come to Ms. Branstetter’s home to make repairs. Mr. Beach testified that Ms. Branstetter refused to allow Beach Ventures to come to her home.
At hearing, Ms. Branstetter testified that she did not recall whether Mr. Beach offered to come to her home to make repairs during the timeframe of the Directive. However, Ms. Branstetter testified that if such an offer was made, she would have denied Beach Venture’s request to come to her home and make repairs.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
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 a preponderance of the evidence. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of
fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The preponderance of the evidence does not show that Beach Ventures violated A.R.S. §32-1154(A)(22) by failing to comply with the Directive because Ms. Branstetter did not allow Beach Ventures access to correct the work. Moreover, Mr. Beach was ordered to have no contact with Ms. Branstetter by a Judicial Officer of the Maricopa County Justice Courts.
The preponderance of the evidence established that Ms. Branstetter denied Beach Ventures access to her residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Beach Ventures violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be 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, March 29, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors