ALJDEC decisions subject to certification as final

2017A-741-CHC-ROC · Registrar of Contractors · 2017-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tonya Fass,

COMPLAINANT,

v.

Adams Disaster & Restoration Inc.,

License No. B.286698-R,

RESPONDENT.

No. 2017A-741-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING DATES: July 19, 2017, at 1:00 p.m.; August 4, 2017, at 1:00 p.m.

APPEARANCES: Tonya Fass (“Complainant”) appeared on her own behalf at the July 19, 2017 hearing date, but failed to appear at the August 4, 2017 hearing date; Adams Disaster & Restoration Inc. (“Respondent”) appeared at both hearing dates through its employee George Simon.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about August 29, 2013, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.286698-R for residential general contracting to Respondent.

On or about February 8, 2017, Complainant filed a complaint with the Registrar against Respondent that alleged that Respondent had failed to timely complete its contract and had performed poor work in renovating her house at 539 S. Stewart, Mesa, Arizona 85202. Complainant later amended her complaint to allege additional workmanship deficiencies.

The Registrar assigned the complaint to its Investigator Mike Crow for investigation. On March 6, 2017, and March 20, 2017, Investigator Crow performed jobsite inspections. On April 14, 2017, Investigator Crow on behalf of the Registrar issued a Directive that required Respondent to correct eight complaint items on or before 5:00 p.m. on May 2, 2017.

On May 3, 2017, Investigator Crow arrived at Complainant’s house to perform a compliance jobsite inspection. Inspector Crow’s compliance jobsite inspection notes state in relevant part as follows:

At this CJSI the Respondent acknowledged that they have not corrected/completed some of the plumbing issues as directed and they informed me that they have made several attempts to have their plumber enter the property to make corrections as directed in the Written Directive. The Complainant informed me that the Respondent did not allow enough time for her to plan it appropriately to allow them access. At the conclusion of this CJSI and as I left the Complainant and the Respondent were discussing when the Respondent could come back to complete the work.

Although Respondent performed repairs, Complainant was unhappy with the results and requested that the Registrar issue a citation against Respondent’s license. Investigator Crow referred the matter to the Registrar’s Legal Department and on May 5, 2017, the Registrar issued a citation that charged A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22) as cause to suspend or revoke Respondent’s license.

Respondent filed a timely written answer to the citation, alleging among other things that Respondent had corrected all items on the April 14, 2017 directive. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was commenced on July 19, 2017. Complainant expressed her dissatisfaction with Respondent’s repairs. Respondent’s representative stated that it had corrected all items on the April 14, 2017 directive to comply with the Registrar’s workmanship standards.

Investigator Crow testified that he had not performed a second compliance/ prehearing inspection. To allow the parties and the Registrar to have the benefit of a second compliance/prehearing inspection, the Administrative Law Judge (“ALJ”) informed the parties on the record that she would set a further hearing on August 4, 2017, at 1:00 p.m. Both parties indicated that they were available on that date. On July 19, 2017, the ALJ issued an order setting a further hearing on August 4, 2017, at 1:00 p.m. OAH staff sent the July 19, 2017 order to both parties at their addresses of record.

Although the start of the duly noticed further hearing was delayed seventeen minutes, Complainant did not request to appear telephonically, did not appear personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the further hearing be further delayed. Consequently, Complainant did not present any additional evidence to prosecute her complaint to the Registrar against Respondent.

Investigator Crow testified that he performed a prehearing/compliance jobsite inspection on August 2, 2017, which both parties attended, but that because Complainant would not allow Respondent’s representatives onto her property, Respondent’s representatives stayed at the curb.

Investigator Crow testified that he inspected all items on the April 4, 2017 directive and that, in his opinion, all items had been corrected to comply with the Registrar’s workmanship standards. Respondent submitted Investigator Crow’s Pre-hearing Compliance Jobsite Inspection Notes into evidence.

CONCLUSIONS OF LAW

The ALJ informed the parties on the record on July 19, 2017 that she would set a further hearing date on August 4, 2017, at 1:00 p.m. and Complainant indicated that she was available on the further hearing date. On July 19, 2017, the ALJ issued an order setting a further hearing on August 4, 2017, which OAH staff mailed to the parties at their addresses of record. Complainant received notice of the August 4, 2017 further hearing date.

Complainant bears the burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154(A) 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 did not establish by a preponderance of the evidence cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order, the Complainant Tonya Fass’s complaint in Case 2017-741 against Respondent Adams Disaster & Restoration Inc.’s License No. B.286698-R shall be dismissed.

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, August 4, 2017

Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors