ALJDEC decisions subject to certification as final

2016A-628-ROC · Registrar of Contractors · 2016-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sherry and Theodore Murphey,

COMPLAINANTS,

v.

Anthony Salvatore Derasmi

DBA: Double D's Consulting and Construction,

License No. KB-2.272698-D,

RESPONDENT.

No. 2016A-628-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2016, at 8:30 a.m.

APPEARANCES: Sherry and Theodore Murphey (“Complainants” or “Mrs. and Mr. Murphey”) appeared on their own behalf and their siblings, sisters-in-law, and brothers-in-law, Sandra and Charles Stephens (“Mrs. and Mr. Stephens”) and Kath and Jim Geise (“Mrs. and Mr. Geise”), testified on their behalf; Anthony Salvatore Derasmi DBA: Double D’s Consulting and Construction (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about May 10, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.272698-D for dual residential and small commercial contracting to Respondent. Respondent’s address of record is 1916 W. Cortez Cir., Chandler, Arizona 85224-1237.

On or about February 22, 2016, Sherry Stephens on Complainants’ behalf filed a complaint with the Registrar alleging 61 specific complaints about Respondent’s performance of its July 19, 2015 contract to perform repairs at Complainants’ house at 926 E. Cochise Dr., Phoenix, Arizona 85020.

Mrs. Stephens has power of attorney for her brother, Mr. Murphey, because he is 100% disabled as a result of a mental disability. Mrs. Murphey is also disabled. Mr. Murphey inherited the house where the repairs were performed from his mother.

Mrs. Stephens attached to the complaint Respondent’s written proposal to perform the work. There is no signed contract. Mrs. and Mr. Stephens and Mrs. and Mr. Geise negotiated the contract with Respondent and attempted to supervise his work on Mrs. and Mr. Murphey’s behalf.

The Registrar assigned the complaint to its Investigator, Steve Klein (“Investigator Klein”), for investigation. On April 16, 2016, Investigator Klein performed a jobsite inspection.

On that May 4, 2016, Investigator Klein on behalf of the Registrar issued a Directive that addressed eleven specific deficiencies, in relevant part as follows:

Complaint Item 7: The shower tile work in the front bathroom is, IMHO, below standard. The wall tiles are not properly aligned with one another, the wall surface should be reasonably flat; it is not. The stripe of 1” accent tiles is not reasonably flat,

Hall bath - Verified deco band impression, lippage, (Tile lippage should no greater than 1/32” between individual tiles), inconsistent grout line at deco band corner, and grout touch up.

Complaint Item 11: The socket on the kitchen end wall is badly installed, needs attention.

Receptacles shall be installed per the building code.

Complaint Item 32: Front door bell no longer works.

Appears Respondent abandoned the original door bell, put blue tape over it and installed another button on the other side of the door. The original button should be removed.

Complaint Item 33: The outside screen door to the laundry room is not properly framed in, or painted, and the stucco in the vicinity of the door is not completed or color matched.

Door should be installed per original signed contract.

Respondent agreed to install tamper proof screws.

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Complaint Item 35: The outlets in the kitchen work area and bathrooms need to be GFCI.

Respondent agreed to install GFCI receptacles.

Complaint Item 36: The front door threshold grout is self-destructing and needs attention.

Verified poor grout and or caulk finish at threshold.

Complaint Item 39: Sherry also requested pull out shelves in the kitchen cabinets. Her request was ignored.

Respondent agreed to install the shelves

Complaint Item 40: Ted & Sherry need all the warranty paperwork for all the newly installed appliances.

Respondent agreed to provide the paperwork.

Complaint Item 42: Master Bath: Again, there is no bullnose where the shower tiles meet the painted walls. Also the threshold tile is different than the shower floor tile, it looks like the kitchen wall tile. There is no bullnose at the threshold, leaving a sharp edge on both sides of the threshold. Not only a tripping hazard, but a cut-your foot-open hazard!

Respondent should correct any sharp tiles.

Complaint Item 43: The entry area outside the front door looks like a tile dump zone. Needs cleaning up.

Construction debris should be cleaned and or removed

Complaint Item 45: The smoke detector across from the front bathroom is hanging out of the wall,

Completed prior to the jobsite inspection

The deadline in the Directive for Respondent to perform corrective action was on or before 5:00 p.m. on May 20, 2016.

On May 24, 2016, Investigator Klein called Ms. Stephens and learned that Respondent had not fully complied with the May 4, 2016 Directive. Investigator Klein sent the complaint to the Registrar’s Legal Department.

On May 25, 2016, the Registrar issued a Citation that charged cause to suspend or revoke 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). Respondent filed a timely written answer, stating that it was embarrassed about the complaint and that it would resolve the situation.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On July 14, 2016, the Registrar issued a Notice of Hearing. The Registrar sent the notice of hearing to Respondent’s address of record.

The hearing was twice continued at Mrs. Stephens’ request because Investigator Klein was not available to testify on the earlier hearing dates. Staff at OAH mailed the orders continuing the hearing to Respondent at his address of record.

An evidentiary hearing was held on October 28, 2016. Investigator Klein, Mr. Murphey, Mrs. and Mr. Stephens, and Mrs. and Mr. Geise testified to establish the deficiencies noted on Investigator Klein’s May 4, 2016 Directive.

Mrs. Stephens testified that as of the date of the hearing, Respondent had not corrected any of the deficiencies noted on the Directive, with the exception that it had installed one GFCI receptacle in the kitchen and one GFCI receptacle in the bathroom (Complaint Item 35). However, there were still two outlets in the kitchen that did not have a GFCI receptacle.

Respondent did not request to appear telephonically at any of the scheduled hearing dates and did not request that the October 28, 2016 hearing be continued. Although the start of the duly noticed October 28, 2016 hearing was delayed sixteen minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not contact OAH to request that the start of the hearing be further delayed. 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 file at the Registrar’s public website on this date. Although there is no prior discipline against Respondent’s license, on August 14, 2015, Respondent voluntarily canceled its license. Based on the cancelled status of the license and Respondent’s failure to attend the duly noticed continued hearing, it does not appear that he can be regulated at this time.

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CONCLUSIONS OF LAW

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

The Notice of Hearing that the Registrar mailed to Respondent’s address of record and the orders continuing the hearing that OAH mailed to Respondent’s address of record were reasonable and Respondent is deemed to have received notice of the continued hearing.

Complainants bear the burden of proof to establish cause to discipline Respondent’s license 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.”

Complainants established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the respects identified on the May 4, 2016 Directive. Therefore, Complainant 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.

Complainants established that Respondent failed to comply with the May 4, 2016 Directive. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Anthony Salvatore Derasmi DBA: Double D's Consulting and Construction’s License No. KB-2.272698-D shall be revoked.

It is further recommended that Respondent shall 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 calendar 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, October 28, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors