FINACT2018A-04253-ROC.pdf

2018A-04253-ROC · Registrar of Contractors · 2019-05-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Morgan Sheridan Wilkerson, Case No. 2018-04253 COMPLAINANT, Docket No. 2018A-04253-CHC-ROC v. Arizona Crown & Stairs LLC, FINAL ADMINISTRATIVE DECISION License Nos. ROC 291347 and ROC 291348, 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.

REGISTRAR’S ACCEPTANCE

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 accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on June 11, 2019.

IT IS FURTHER ORDERED 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:

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

FINAL NOTE On page 3, line 3 replace “send” with “second”. Dated May 2, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail May 2, 2019 to:

Respondent Arizona Crown & Stairs LLC PO Box 10212 Glendale, AZ 85318 Arizona Crown & Stairs LLC PO Box 12434 Costa Mesa, CA 92627 Complainant Morgan Sheridan Wilkerson 13249 N 91st Dr Peoria, AZ 85381

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge Case No. 2018-04253 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.15.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Morgan Sheridan Wilkerson, No. 2018A-04253-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Arizona Crown & Stairs LLC, License Nos. ROC 291347 and ROC 291348, RESPONDENT

HEARING: March 26, 2019, at 8:30 a.m. APPEARANCES: Morgan Sheridan Wilkerson (“Complainant”) appeared on his own behalf; Arizona Crown & Stairs LLC (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. On April 21, 2014, the Registrar of Contractors issued License Nos. ROC

291347, and License No. ROC 291348, Class CR-60 for specialty dual finish carpentry

to Respondent. Respondent’s address of record is P.O. Box 10212, Glendale, Arizona

85318-0212.

2. On September 10, 2018, Complainant filed a complaint with the Registrar

against Respondent’s licenses, alleging that Respondent had built an exterior staircase

to the second floor of Complainant’s house at 13249 N. 91st Dr., Peoria, Arizona 85381,

but had constructed the staircase without a necessary permit.

3. The Registrar assigned the matter to Investigator Jack Grimm for investigation. Investigator Grimm performed a jobsite inspection and, on October 22, 2018, issued a directive to Respondent requiring it to “[o]btain permit from the City of Peoria and complete project with a final approval from the City” on or before 5:00 p.m.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.15.2019 ROC LEGAL

on November 8, 2018. Investigator Grimm noted on the directive that Respondent’s licenses were currently inactive. 4. After Respondent failed to comply with the directive, Investigator Grimm

referred the matter to the Registrar’s Legal Department.

5. On November 29, 2018, the Registrar issued a Citation against Respondent’s

licenses, charging cause to suspend or revoke Respondent’s contractor’s licenses

under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and

A.R.S. § 32-1154(A)(22). The Registrar sent the Citation to Respondent at its address

of record.

6. On or about December 11, 2018, Respondent’s qualifying party filed a written

answer to the Citation, denying that it had violated any of the Registrar’s statutes. On

the written answer, Respondent’s qualifying party provided a new address for

Respondent of P.O. Box 12434, Costa Mesa, California 92627.

7. The Registrar referred the matter to the Office of Administrative Hearings

(“OAH”), an independent state agency, for an evidentiary hearing.

8. On February 4, 2019, the Registrar issued a Notice of Hearing, setting a

hearing before OAH on March 26, 2019, at 8:30 a.m. The Registrar sent the Notice of Hearing to Respondent at its address of record, as well as to the new address in California that Respondent’s qualifying party had provided on its written answer to the Citation. 9. A hearing was held on March 26, 2019. Complainant testified on his own behalf and submitted seven exhibits. Investigator Grimm also testified. 10. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed eighteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its licenses. //// RECEIVED 4.15.2019 ROC LEGAL

ADDITIONAL EVIDENCE

11. On February 12, 2018, Respondent contracted to construct an exterior

staircase to the send floor of Complainant’s family’s house for the contract price of

$2,566.00.1 Respondent subsequently substantially constructed the staircase.2

12. On February 22, 2018, the City of Peoria left a courtesy notice for

Complainant, informing him that a permit was required for the exterior staircase and

that no permit had been obtained.3 Complainant testified that the city building inspector

told him §§ 105.1 and 1009 of the International Building Code required a permit for the

exterior staircase.4

13. Complainant testified that the City of Peoria gave him three months to

obtain a permit and to modify the exterior staircase so that it complied with the building

code. Complainant explained that certain features of the staircase needed to be

corrected to comply with code.

14. Complainant testified that he called, emailed, and texted Respondent, but that Respondent refused to do anything.5 At one time, Respondent’s qualifying party stated that he went to the City of Peoria to investigate permit requirements, but nothing came of it. 15. Complainant testified that he had paid the full contract price to Respondent. Nonetheless, he asked other contractors whether they would be willing to obtain a permit and correct the exterior staircase. None of the other contractors were interested in the job. 16. On May 31, 2018, the City of Peoria Police Department Code Enforcement Chief Inspector Officer Bethards informed Complainant that time had run out and that Complainant needed to get the permit or tear down the exterior staircase. Complainant

See Complainant’s Exhibit 1. See Complainant’s Exhibit 2 (photographs). See Complainant’s Exhibit 3. See Complainant’s Exhibit 8. 5 See Complainant’s Exhibit 7. RECEIVED 4.15.2019 ROC LEGAL

stated that he would talk to his contractor or tear the stair case down by Wednesday, June 6, 2018.6 17. Complainant testified that Respondent did not respond to his calls, emails,

and texts. Complainant testified that he pulled the staircase down himself and paid

College Hunks Hauling Junk $320.00 to haul off the debris.7

18. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s

disciplinary history as shown on the Registrar’s public website on this date. Although

neither of Respondent’s licenses have ever been disciplined before, both of

Respondent’s licenses had been voluntarily cancelled.

CONCLUSIONS OF LAW

1. The Notice of Hearing that the Registrar mailed to Respondent at its address

of record and to the new address that Respondent’s qualifying party provided on its

written answer to the Citation was reasonable and Respondent is deemed to have

received notice of the hearing.8 2. The cancelled status of Respondent’s licenses does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.9 This matter lies within the Registrar’s jurisdiction.10 3. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence.11 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”12 A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater See Complainant’s Exhibit 5. 7 See Complainant’s Exhibit 4. See A.R.S. §§ 41-1092.04; 41-1092.05(D). See A.R.S. § 32-1154(C). That statute provides that “[t]he 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 . . . .” See A.R.S. § 32-1101 et seq. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 12 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 4.15.2019 ROC LEGAL

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.”13

5. Complainant established that Respondent constructed the exterior staircase

without obtaining or making sure that a necessary permit had been obtained, that

Respondent’s construction of the exterior staircase did not comply with code

requirements, and that Respondent failed to comply with the October 22, 2018

directive. Complainant therefore established cause to suspend or revoke

Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(2),14 A.R.S. § 32-

1154(A)(3),15 namely A.A.C. R4-9-108,16 and A.R.S. § 32-1154(A)(22).17

RECOMMENDED ORDER

In view of the foregoing, on the effective date of the final order in this matter, IT IS ORDERED that Respondent Arizona Crown & Stairs LLC’s License Nos. ROC 291347 and ROC 291348 shall be revoked. IT IS FURTHER ORDERED that Respondent shall pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). IT IS FURTHER ORDERED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, Respondent’s licenses shall be revoked, effective on such deadline date. No future

BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). A.R.S. § 32-1154(A)(2) includes among the grounds to suspend or revoke a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” A.R.S. § 32-1154(A)(3) includes among the grounds to suspend or revoke a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(22) includes among the grounds to suspend or revoke a contractor’s license, “[f]ailure 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.” RECEIVED 4.15.2019 ROC LEGAL

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.

If the Director of the Office of Administrative Hearings certifies this Administrative

Law Judge Decision, the effective date of the order will be five days from the date of

certification.

Done this day, April 15, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors