ALJDEC decisions subject to certification as final
2017A-5116-CHC-ROC · Registrar of Contractors · 2018-01-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Linda DeOliviera,
COMPLAINANT,
v.
Dent Electric LLC,
License No:
302941
RESPONDENT.
No. 2017A-5116-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 11, 2018
APPEARANCES: Complainant Linda DeOliviera appeared on behalf of herself.
Erik Dent appeared on behalf of Respondent Dent Electric, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
1. On or about August 12, 2017, Complainant Linda DeOliviera
(“Ms. DeOliviera”) entered into an electrical construction contract with Respondent Dent Electric, LLC (“Dent) wherein Dent would install new meters and panels with main breakers at Ms. DeOliviera’s housing units located at 340 W. Highland Avenue, Phoenix, AZ 85015 (“property”).
2. Erik Dent is Dent’s qualifying party.
3. On or about August 12, 2017, Dent began work under the contract.
4. On or about August 21, 2017, Dent stopped work under the contract.
5. An electrical outage occurred at one of the units on the property.
6. On or about September 2, 2017, Ms. Oliviera contacted Hoffco Construction to follow up on the electrical outage.
7. On September 5, 2017, APS shut down the electricity at all of the units on the property because it was unable to read the meters. APS informed Ms. Oliviera that the panels were incorrect and no permit had been obtained for the units.
8. As a result, the tenants living in the property were required to relocate.
Ms. Oliviera paid for the tenants to temporarily reside in a hotel.
9. Ms. Oliviera attempted to contact Dent about the electrical problem but Dent did not respond.
10. Mr. Oliviera hired a different contractor to repair the electrical work.
11. On September 15, 2017, the City of Phoenix inspected the property and authorized power to be reconnected to Ms. Oliviera’s property.
12. On or about October 10, 2017, the Registrar of Contractors (‘Registrar”) received a complaint from Ms. DeOliviera alleging poor workmanship on the part of Dent.
13. Investigator Matt Gunstra reviewed the complaint documents. In the complaint, Ms. DeOliviera alleged that Dent did not obtain building permits before beginning construction or during construction. Ms. DeOliviera also alleged that the power was shut off on her property because APS could not read the meters.
14. Investigator Gunstra performed a permit search on the City of Phoenix website and determined that no permit had been obtained by Dent before or during construction.
15. After reviewing the complaint, Investigator Gunstra did not conduct a job-site inspection because the work had already been repaired.
16. On November 15, 2017, the Registrar issued a Citation for an alleged
violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
17. Dent filed a timely response to the Citation.
18. The Registrar referred the matter to the Office of Administrative Hearings,
an independent agency, to schedule an evidentiary hearing. 19. On November 22, 2017, the Registrar issued a Notice of Hearing setting
the above-captioned matter for hearing at 1:00 p.m. on January 11, 2018, at the Office
of Administrative Hearings in Phoenix, Arizona.
20. A hearing was held on January 11, 2018.
21. At hearing, Ms. DeOliviera contended that Mr. Dent performed poor construction work on her property.
22. At hearing, Mr. Dent did not dispute that he performed poor electrical work at the property, or the facts alleged in Ms. Oliviera’s complaint. Mr. Dent testified that he decided not to pull a permit because the work was being done in the summer and he has had a bad experience working with SRP employees.
23. Administrative notice is taken of Respondent’s prior License record on January 31, 2018. Such prior License record reflects that Respondent’s License No. 302941 was first issued on June 3, 2016, and is current. Such prior License record also reflects that there is open complaint against Respondent, and one complaint that resulted in discipline against Respondent’s license.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
A.R.S. § 32-1154(A) provides:
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:
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3. Violation of any rule adopted by the registrar.
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A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The preponderance of the evidence shows that Dent did not perform the
work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 302941 of Dent Electric, LLC shall be suspended for a period of five calendar days.
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, January 31, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors