ALJDEC decisions subject to certification as final

2017A-475-CHC-ROC · Registrar of Contractors · 2017-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Quick Shine Auto Spa LLC,

COMPLAINANT,

v.

J Burroughs Construction LLC,

License No: 270040, 270041

RESPONDENT.

No. 2017A-475-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 6, 2017

APPEARANCES: Brent Kollars, Owner, appeared on behalf of Quick Shine Auto Spa LLC. Respondent did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

J Burroughs Construction LLC (Respondent) is the holder of License Nos. 270040 and 270041 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 1, 2016, Quick Shine Auto Spa LLC (Complainant) entered into a contract with Respondent to install, among other things, wall and ceiling panels inside a car wash tunnel.

On or about January 26, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. After a jobsite inspection, Investigator Corlett issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 17, 2017.

You are hereby directed to remedy the following violations by the appropriate means:

After speaking with Complain[ant] representative Les Lamastus and Joe Burroughs at the onsite inspection the only workmanship issue listed on the complaint that is still in need of corrective work is the loose wall paneling in the car wash tunnel. All other workmanship issues are monetary in nature as the Complainant has either already corrected and or modified them, does not want them corrected at this time or the Complainant is alleging monetary damages incurred due to delays.

. . . .

Complaint Item 3: Tunnel walls & ceiling panels installed wrong.

Investigator’s Observation: Complainant has already modified the tunnel ceiling with 4 additional “strips” to correct the sagging ceiling panels. Per A.R.S. § 32-1155-C(2) since the Complainant has modified the Respondents work on the ceiling panels, the ROC is barred by statute from issuing a citation in regards to this particular issue.

The wall panels are not attached properly and were observed to be loose and buckling in numerous places. The Respondent stated that the Complainant directed the panel installation and did not provide installation manual. The Respondent stated that his employees did the installation.

The Respondent is the licensed contractor and is responsible to install the paneling to manufactures specifications.

RESPONDNET [sic] SHOULD PROPERLY REMOVE AND REPLACE ALL THE CAR WASH WALL PANELS FOLLOWING THE MANUFACTURERS INSTALLATION REQUIREMENTS.

Governing Rule: A.R.S. §32-1154-A(3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

. . . .

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make any attempt to contact Complainant to perform the corrective work outlined in the written directive. After the deadline in the directive expired, Investigator Corlett was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on June 5, 2017. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record.

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.”

A hearing was held on June 6, 2017. Brent Kollars, Complainant’s owner, testified on behalf of Complainant.

Investigator Corlett testified that the wall panels were not tightly attached to the walls. Investigator Corlett stated that on May 26, 2017, he was in the area and did an inspection at which time he observed numerous buckling panels. Investigator Corlett testified that Respondent had called him around 10:00 a.m. on the morning of the hearing and asked for the address where the hearing would take place. At that time, Respondent indicated he would be attending the hearing.

Mr. Kollars testified that Respondent failed to install the panels according to the manufacturer’s instructions, and that once installed, the panels cannot be reinstalled properly. Mr. Kollars provided estimates for the removal and replacement of the panels totaling $55,765.00. Mr. Kollars stated that Respondent did not make any attempt to contact him following the written directive.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

On June 8, 2017, Respondent submitted written explanation of why he failed to attend the hearing indicating that he had completed a round of chemotherapy in Oklahoma on June 5, 2017, and his treatments often left him extremely fatigued, confuse, and disoriented with headaches and diarrhea for up to four days afterwards.

Administrative notice is taken of Respondent’s prior License record on June 25, 2017. Such prior License record reflects that Respondent’s License No. 270040 was first issued on January 20, 2011, and is current. Such prior License record also reflects that there were two open complaints and no resolved/settled/withdrawn complaints against Respondent’s license. Such prior License record reflects that Respondent’s License No. 270041 was first issued on February 4, 2011, and was suspended for non-renewal.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Respondent’s administratively suspended license does not deprive Complainant of its right to prosecute its complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 evidence established that Respondent failed to install the panels in accordance with the manufacturer’s instructions. Therefore, Complainant established that Respondent departed from the plans and specifications in a material respect that was prejudicial to Complainant.

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 270040 and 270041 for a period of five days.

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 final 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 40 days from the date of that certification.

Done this day, June 26, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors