ALJDEC decisions subject to certification as final

2017A-5455-CHC-ROC · Registrar of Contractors · 2018-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Raymond Ray,

COMPLAINANT,

v.

RGB Restoration and Builders LLC,

License No: 277891, 277890

RESPONDENT

No. 2017A-5455-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 28, 2018, 1:00 P.M.

APPEARANCES: John Ray, Complainant, appeared on behalf of himself; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. RGB Restoration and Builders, LLC (Respondent), is the holder of License Numbers 277891 and 277890 issued by the Registrar of Contractors (Registrar).

2. On or about October 27, 2017, John Ray (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the insurance renovation work performed by Respondent at his residence in Safford, Arizona.

3. After an inspection performed by the Registrar on December 1, 2017, the Registrar issued a Directive, dated December 1, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 18, 2017, as follows:

1. Correct roof leak at porch near front door.

2. Comb out fins on A/C North side of home.

3. Comb out fins A/C West side of home.

4. Repair broken window in AZ room.

5. Paint framing replaced on Southeast porch underneath.

6. Tape, texture, paint ceiling in AZ room

7. Texture paint kitchen ceiling.

4. When foregoing items were not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated December 20, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar issued a Notice of Hearing, dated January 10, 2018, that set a hearing for February 28, 2018, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about January 10, 2018, at its address of record.

6. 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.”

7. The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

8. A hearing was held on February 28, 2018, at 1:00 P.M. Complainant John Ray testified and presented the testimony of Betty Ray. Michael Springer testified on behalf of the Registrar. The Tribunal took administrative notice of the Registrar’s file.

9. Although the commencement of the hearing was delayed approximately 25 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.

10. Michael Springer 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. Mr. Springer testified that Respondent performed no corrective work.

11. Complainant John Ray testified that Respondent’s allegation that he did not complete the work because of insurance issues is untrue. Betty Ray testified that Respondent had represented that it would perform corrective work on December 14, 2017, but never showed up and she never heard further from Respondent.

12. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On October 27, 2017, Respondent’s License Nos. 277891 and 277890 were suspended. On December 26, 2017, and January 9, 2018, they were again suspended. On February 15, 2018, said licenses were revoked. The suspended and revoked status of Respondent’s licenses 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 copy 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 suspended and revoked status of Respondent’s licenses do not deprive Complainant of his right to prosecute his 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) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following

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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

6. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike 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, RGB Restoration and Builders, LLC’s, License Numbers 277891 and 277890 are revoked.

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, March 19, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors