ALJDEC decisions subject to certification as final
2017A-370-CHC-ROC · Registrar of Contractors · 2017-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Thea and Carter Pearl,
COMPLAINANT,
v.
Urban Renovations, Inc.,
License No: 278012, 292649
RESPONDENT.
No. 2017A-370-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 3, 2017
APPEARANCES: Thea Pearl, Complainant; no appearance on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Urban Renovations, Inc. (Respondent), is the holder of License Numbers 278012 and 292649 issued by the Registrar of Contractors (Registrar).
2. On or about January 19, 2017, Thea and Carter Pearl (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with the purchase of and construction work at a residence at 3620 E. Elm St., Phoenix, Arizona.
3. After an inspection performed by the Registrar on February 3, 2017, the Registrar issued a Directive, dated February 8, 2017, to Respondent for the failure to meet minimum workmanship standards. (Arizona Administrative Code Rule 4-9-108).
4. Specifically, the Registrar cited the following violations relating to deficient work:
Complaint Item 1: The exterior wood paneling and wood eves on home are not holding up. They are peeling and chipping.
Complaint Item 2: There is no z flashing at the horizontal breaks at the top of the panels - Per code horizontal joints in hardboard siding should be lapped, ship lapped or flashed
Complaint Item 3: There is no horizontal flashing at the point the siding changes to brick veneer
Complaint Item 4: The top course of brick is flat and requires a slope to stop water penetration
Complaint Item 5: There is no z flashing at the top of the windows, over the garage doors or entry doors
5. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar on February 24, 2017, then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(3) (failure to meet minimum construction standards under Arizona Administrative Code Rule 4-9-108), and A.R.S. § 32-1154(A)(22) (failure to take corrective action). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
6. The Registrar issued a Notice of Hearing setting a hearing for May 3, 2017, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about March 23, 2017, at its address of record.
7. 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.”
8. The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
9. A hearing was held on May 3, 2017, at 1:00 P.M. Complainant Thea Pearl testified and presented the testimony of Joe Bauschelt of Intex Custom Homes. Matt Gunstra of the Registrar appeared and testified.
10. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued.
11. Matt Gunstra on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he spoke with David DonDero and Michael Maguire, representatives of Respondent, and was told that Respondent “accepted responsibility for the issues.” Mr. Gunstra further testified that at his recent inspection of the residence on May 2, 2017, he observed that some corrective work had been attempted but that the work deficiencies still remained.
12. Thea Pearl, Complainant, and Joe Bauschelt, on behalf of Complainant, both testified as to the substance of the work deficiencies and gave a chronology of the unsuccessful attempts on the part of Complainant to remedy the work deficiencies.
13. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On July 6, 2016, Respondent’s License No. 292649 was suspended due to non-renewal. The administratively suspended status of Respondent’s license and Respondent’s failure to appear at the hearing are considered as factors in aggravation of any determination of discipline.
CONCLUSIONS OF LAW
1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
2. The administratively suspended status of one of Respondent’s licenses does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
3. 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.
4. 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).
5. A.R.S. § 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:
...
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....
6. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”
7. Complainant has presented sufficient evidence to demonstrate deficiencies in the work performed by Respondent and the failure on the part of Respondent to undertake corrective action. No evidence was presented to rebut Complainant’s evidence.
8. Complainant has established that Respondent’s licenses should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Urban Renovations, Inc.’s, License No. 278012 is suspended and License No. 292649 is revoked until the Registrar receives and accepts written verification that Urban Renovations, Inc., has remedied the items listed in the Registrar’s Directive, dated February 8, 2017.
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, May 23, 2017.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors