ALJDEC decisions subject to certification as final

2018A-04253-ROC · Registrar of Contractors · 2019-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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. 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. 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. on November 8, 2018. Investigator Grimm noted on the directive that Respondent’s licenses were currently inactive. After Respondent failed to comply with the directive, Investigator Grimm referred the matter to the Registrar’s Legal Department. 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. 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. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 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. A hearing was held on March 26, 2019. Complainant testified on his own behalf and submitted seven exhibits. Investigator Grimm also testified. 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. / / / / Additional Evidence 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] 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] 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. 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. 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. 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 stated that he would talk to his contractor or tear the stair case down by Wednesday, June 6, 2018.[6] 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] 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 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] 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] Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence.[11] “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 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] 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 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 ----------------------- [1] See Complainant’s Exhibit 1. [2] See Complainant’s Exhibit 2 (photographs). [3] See Complainant’s Exhibit 3. [4] See Complainant’s Exhibit 8. [5] See Complainant’s Exhibit 7. [6] See Complainant’s Exhibit 5. [7] See Complainant’s Exhibit 4. [8] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [9] 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 . . . .” [10] See A.R.S. § 32-1101 et seq. [11] 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). [13] Black’s Law Dictionary at page 1220 (8th ed. 1999). [14] 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.” [15] 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.”

[16] 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.” [17] 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.”

-----------------------

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