ALJDEC decisions subject to certification as final
2017A-4093-ROC · Registrar of Contractors · 2017-12-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Pamela Michelle Senne,
COMPLAINANT,
v.
RGB Restoration and Builders LLC,
License Nos: 277891, 277890
RESPONDENT.
No. 2017A-4093-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 21, 2017, at 1:00 p.m.
APPEARANCES: Pamela Michelle Senne (“Complainant”) appeared on her own behalf; RGB Restoration and Builders LLC (“Respondent”) failed to appear.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. 277891 and 277890 to Respondent. Respondent’s address of record is 5235 S. Kyrene Rd., Ste. 8, Tempe, Arizona 85283-1780.
On or about August 9, 2017, Complainant filed a complaint with the Registrar against Respondent alleging 15 specific items of poor workmanship in Respondent’s performance of its contract to perform work at Complainant’s house at 1364 W. 29th Street, Safford, Arizona 85546.
The Registrar assigned the complaint to its Investigator, Michael S. Springer, for investigation. Investigator Springer performed a jobsite inspection and on August 31, 2017, issued a directive to Respondent to repair 11 items on Complainant’s complaint on or before 5:00 p.m. on September 18, 2017, in relevant part as follows:
Correct painted over outlets, motion detector, cable outlets, switches and vents.
Replace interior doors per contract.
Prep and paint interior of closets/pantry.
Reinstall all outlet covers, switch covers.
Correct window covering not installed.
Correct painted items, light fixtures, ceiling fans, sliding door, closet mirrors, floors, fireplace brick, door handles and counters.
Correct overspray on upper bathroom cabinet.
Reinstall pantry door.
Reinstall closet doors.
Reinstall towel rack and toilet paper holder.
Correct water damage in garage.
After Complainant informed Investigator Springer that Respondent had not performed any corrective work to comply with the August 31, 2017 directive, the complaint was referred to the Registrar’s Legal Department. On September 21, 2017, the Registrar issued a Citation against Respondent’s contractor’s licenses, charging cause to revoke or suspend the licenses 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 sent the Citation to Respondent via certified mail at its address of record.
Respondent filed a timely written answer to the Citation, denying any violations. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.
On November 1, 2017, the Registrar issued a Notice of Hearing, setting a hearing in OAH on December 21, 2017, at 1:00 p.m. The Registrar sent the Notice of Hearing to Respondent at its address of record.
An evidentiary hearing was held on December 21, 2017. Investigator Springer testified to establish the workmanship deficiencies noted on the August 31, 2017 directive. Complainant and her husband, William Senne, testified that Respondent had not performed any work to comply with the August 31, 2017 directive.
Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or 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 its licenses.
Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the website showed that Respondent’s licenses were placed on finite suspensions as a result of other complaints between October 27, 2017, and November 2, 2017, and between November 26, 2014, and November 30, 2014. Respondent’s licenses were current and otherwise in good standing.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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 the hearing.
Complainant bears the burden of proof to establish cause to discipline Respondent’s licenses 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.”
Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the 11 specific deficiencies noted in the August 31, 2017 directive, thereby providing cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
Complainant also established that Respondent did not perform any repairs to comply with the August 31, 2017 directive. Therefore, Complainant established cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).
Respondent’s prior disciplinary history, failure to take any action to comply with the August 31, 2017 directive, and failure to appear at the hearing indicate that, at this time, it cannot be regulated.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License Nos. 277891 and 277890 of Respondent RGB Restoration and Builders LLC 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, December 21, 2017
Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors