ALJDEC decisions subject to certification as final

2016A-4051-CHC-ROC · Registrar of Contractors · 2017-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Michael Rauscher,

COMPLAINANT,

v.

Roadrunner Furniture and Shutters,

License No. CR-5.210740-D

RESPONDENT.

No. 2016A-4051-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 21, 2017, at 8:30 a.m.

APPEARANCES: Steven Michael Rauscher (“Complainant”) appeared on his own behalf; Roadrunner Furniture and Shutters (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about August 12, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR-5.210740-D shutters to Respondent. Respondent’s address of record is 2820 S. 18th Place, Ste. 100, Phoenix, Arizona 85034-4039.

On or about October 14, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work and failed to perform warranty work on shutters that it had installed in Complainant’s home at 2124 E. Michelle Dr., Scottsdale, Arizona 85254.

The Registrar assigned the complaint to its Investigator, Stephen Lawton. Investigator Lawton performed a jobsite inspection and, on November 22, 2016, issued a Directive to Respondent, requiring it to perform the follow certain corrective work, in relevant part as follows:

Installation of shutters shows poor workmanship that are out of alignment and do not close in living room and bedrooms. Contract Complainant for which shutters are installed poorly.

The deadline for Respondent to perform the corrective work on the November 22, 2016 Directive was December 6, 2016.

After Respondent failed to comply with the Directive, the Registrar issued a Citation, charging cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). The Registrar mailed the Citation to Respondent at its address of record.

Respondent filed a timely written answer to the Citation, stating that it was insolvent and no longer in business and that the company that held Complainant’s contract would likely complete warranty work.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on February 21, 2017, at 8:30 a.m. at the OAH. 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 a copy of the Notice of Hearing to Respondent at its address of record.

Although the start of the hearing was delayed twenty minutes, Respondent did not request to appear telephonically, did not appear through an employee, officer, or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

Complainant testified to establish the facts set forth above. As of the date of the hearing, no corrective or warranty work had been performed.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. Although the website does not show prior discipline having been taken against Respondent’s license, it shows that on December 27, 2016, Respondent voluntarily cancelled the license.

CONCLUSIONS OF LAW

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154(A) by a preponderance of the evidence.

Complainant established that Respondent performed poor work on the shutters, furnishing cause to revoke or suspend Respondent’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 November 22, 2016 Directive, furnishing cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(22).

The cancelled 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.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order, Respondent Roadrunner Furniture and Shutters’ License No. CR-5.210740-D shall be revoked.

It is further recommended that the Registrar require Respondent 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 Registrar’s Order, the Registrar revoke Respondent’s license, 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, February 21, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors