FINACT2017A-5461-CHC-ROC.pdf

2017A-5461-CHC-ROC · Registrar of Contractors · 2018-03-20

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Cecilia T. Garcia, Case No. 2017-5461 COMPLAINANT,

Jennie Marie Baker DBA: Triple E Roofing, License No. 279725, Docket No. 2017A-5461-CHC-ROC FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. MODIFICATION AND WRITTEN JUSTIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby modifies it. The administrative law judge found that the Respondent failed to file an answer to the citation. ALJ Dec. 2:4, 5:26, and 6:18. The Respondent filed an answer to the citation on December 14, 2017. The Registrar modifies the Administrative Law Judge Decision to strike the finding that Respondent did not file an answer to the citation in this matter. Similarly the administrative law judge found that Respondent defaulted by failing to file an answer and by failing to appear at the hearing to defend against the citation. ALJ Dec. 2:14, 4:8-9, and 5:19. The Registrar strikes the finding that Respondent “defaulted.” The term “default” is reserved for instances where a respondent fails to timely answer a citation. The Registrar warned Respondent within the body

1 of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 of the citation as follows:

If Respondent fails to answer by December 27, 2017, Respondent’s failure will be deemed Respondent’s admission of Respondent’s commission of the act or acts charged in the written complaint. A.R.S. § 32-1155(B). The Registrar may then suspend or revoke Respondent’s license. Because Respondent filed a timely answer, it did not default. The administrative law judge concluded that a civil penalty was appropriate pursuant to A.R.S. § 32-1166(A) and A.C.C. R4-9-131. However, A.R.S. § 32-1166(A) addresses civil penalties for unlicensed contracting, which is not alleged in this case. The Registrar modifies the assessment of the civil penalty to be pursuant to A.R.S. § 32-1154(E) which allows a civil penalty to be assessed for violations of A.R.S. § 32-1154(A)(22). Finally, the administrative law judge determined that Respondent’s conduct warranted a 20-day suspension, the imposition of a restitution award, and revocation of the Respondent’s license if it fails to

pay the restitution within 30 days of the effective date of the order. ALJ Dec. 8:9-9:2. The Registrar

modifies that decision to remove the restitution award and order revocation for the following reasons.

In this case, a restitution award is not the most effective means to remedy the injury to the

complainant and discipline the contractor. A restitution award under A.R.S. § 32-1156.01 may not

always be enforceable in a way that ensures payment. As the administrative law judge correctly noted in

Footnote 7 on page 7 of the Administrative Law Judge Decision:

Although the ROC may order restitution as a condition of license reinstatement, it cannot issue an enforceable order or judgment for money damages against a contractor. . . . If a contractor subject to an ROC restitution order were to choose not to have his license reinstated, the restitution order would be ineffective. (internal citations omitted). Here, Respondent’s license is revoked and cannot be reinstated. Thus, a restitution award is not likely to result in payment to the complainant. On the other hand, the Recovery Fund operates in a substantially different manner than a restitution award. Provided the claimant meets certain statutory eligibility requirements, payments are made from the Recovery Fund regardless of whether a contractor intends to renew its license. Additionally, after the Registrar issues a payout, the Registrar “has the right of subrogation to the extent of payments” made from the Recovery Fund. See A.R.S. § 32-1138. After the Registrar issues a payout, the contractor’s license is suspended by operation of law until the Recovery Fund is repaid. See A.R.S. § 32-1139. In this way, the Recovery Fund’s statutory framework is more effective at both disciplining a contractor who caused an injury and providing a remedy to complainant. CONCLUSION The Registrar hereby modifies the Recommended Order of the Administrative Law Judge Decision by: • Striking “The Respondent failed to file an ANSWER to the CITATION.”, page 2, line 4;

• Striking “The Respondent therefore has defaulted.”, page 2, line 13;

• Striking “The Respondent is defaulted for its failure to appear at the February 12, 2018

hearing in this matter.”, page 4, lines 8-9;

• Striking “Respondent’s default and by”, page 5, line 18;

• Striking “failing to file an ANSWER and” page 6, line 17;

• Striking “(7)” page 7, line 3; and

• Replacing page 8, lines 9-19 through page 9, lines 1-7 with “IT IS RECOMMENDED

THAT ON THE EFFECTIVE DATE OF THE FINAL Order in this matter Respondent

Jennie Marie Baker dba, Triple E Roofing, License No. 279725, shall be revoked. IT IS

FURTHER RECOMMENDED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

• IT IS FURTHER RECOMMENDED that Respondent be revoked if it fails to pay the civil penalty to the Registrar within 30 days of the effective date, pursuant to A.R.S. §32-

3 of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 1154(D).

FINAL NOTE

The Registrar replaces the following, • “December 19, 2018,” found on page 1, ¶ 2, of the Decision with, “December 19, 2017.” • “December 2, 2017,” found on page 3, ¶ 12 with, “December 11, 2017.” The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on April 17, 2018. Dated this 8th day of March 2018. Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail and via electronic mail this 8th day of March 2018 to: Respondent Jennie Marie Baker DBA: Triple E Roofing 2021 S. 20th Ave. Safford, AZ 85546-4041 Complainant Cecilia T. Garcia Santa Fe Pl. Safford, AZ 85546-3737

Case No. 2017-5461