ALJDEC decisions subject to certification as final

2018A-1837-CHC-ROC · Registrar of Contractors · 2018-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dave Moreland,

COMPLAINANT,

v.

Great Gates Inc,

License No:

254698

RESPONDENT.

No. 2018A-1837-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 2, 2018, 1:00 P.M.

APPEARANCES: Complainant Dave Moreland appeared on his own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Great Gates, Inc., (Respondent), is the holder of License Number 254698 issued by the Registrar of Contractors (Registrar).

2. On or about April 20, 2018, Dave Moreland (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with Respondent’s installation of a spiral staircase at a residence in Mesa, Arizona (“project”). The Complaint reflected that the contract between the parties was entered into on December 12, 2017 (Complainant’s Exhibit 1), and that the work was performed on or about February 2, 2018.

3. The Registrar performed an inspection of the project on May 14, 2018. Thereafter, the Registrar issued a Directive, dated May 15, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 31, 2018, as follows:

1. Spiral staircase has sharp unfinished edges.

2. Spiral staircase has sharp welding spots on handrails.

3. Spiral staircase has scratches/damage not repaired.

4. Spiral staircase has gaps and unwelded spots.

5. Spiral staircase has gaps in powder coating= rusting issues.

4. After being informed by Complainant that no corrective action had been performed, the Registrar then issued a Citation to Respondent, dated June 6, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

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

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, dated June 20, 2018, setting a hearing for August 2, 2018, at 1:00 P.M.

The Registrar mailed a copy of the Notice of Hearing to Respondent on or about June 20, 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.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

7. At the August 2, 2018 hearing, Complainant Dave Moreland testified on his own behalf. Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit Nos. 1 - 20.

8. Although the commencement of the hearing was delayed approximately 20 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 nor did it request that the hearing be continued.

9. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the project, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that the items in the Directive also posed a safety hazard and that he did not believe that simply painting, as was suggested by Respondent in its answer, would remedy the defects.

10. Complainant Dave Moreland testified that he contacted Respondent numerous items about the deficiencies and although Respondent agreed to come out to the residence, it had yet to do so. He further presented photographs depicting the deficiencies that had yet to be addressed by Respondent. (Complainant’s Exhibit Nos. 4 -20).

11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On July 12, 2018, Respondent’s License No. 254698 was revoked. The revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The revoked status of Respondent’s license 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. See A.R.S. § 32-1154(D) (“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....

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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). There was no evidence presented to refute Complainant’s evidence that the Directive items existed, were a safety hazard, and could have been repaired.

8. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. There was no evidence presented that Respondent made any effort to perform corrective work nor was there any evidence presented of a valid justification for not doing so.

9. Accordingly Complainant has established that Respondent’s license 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, Great Gates, Inc.’s, License Number 254698 is 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, August 18, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors