FINACT2019A-00526-ROC.pdf

2019A-00526-CHC-ROC · Registrar of Contractors · 2019-08-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Brienne Colleen Masingill, Case No. 2019-00526 COMPLAINANT, Docket No. 2019A-00526-CHC-ROC v. FINAL ADMINISTRATIVE DECISION AND ORDER Skylar Parker Construction And Development Inc., License No. ROC 302084, 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 September 9, 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:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE

On page three, paragraph 11, line three, “respondent” should be “responding.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 On page three, paragraph 11, line six, “and” should be “had.”

Dated July 31, 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 July 31, 2019 to: Respondent Skylar Parker Construction And Development Inc. 10301 N 70th St #217 Paradise Valley, AZ 85253 Complainant Brienne Colleen Masingill 8702 E Buena Terra Way Scottsdale, AZ 85250

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. 2019-00526 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received 7/22/2019 ROC Legal

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brienne Colleen Masingill, No. 2019A-00526-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Skylar Parker Construction and DECISION Development Inc., License No. ROC 302084, RESPONDENT

HEARING: July 9, 2019, at 8:30 a.m. APPEARANCES: Brienne Colleen Masingill (“Complainant”) appeared on her own behalf; Skylar Parker Construction and Development Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. On or about November 19, 2015, the Registrar of Contractors (“the Registrar”) issued License No. ROC 302084 for General Dual KB-2 Dual Residential and Small Commercial contracting to Respondent. Respondent’s former address of record was 7418 E. Helm Dr. #213, Scottsdale, Arizona 85260, and its qualifying party/ director is Steven Mark Davis II. 2. On or about January 31, 2019, Complainant filed a complaint with the Registrar against Respondent’s license, alleging that on April 23, 2018, Respondent had completed a substantial remodel of Complainant’s house at 8702 E. Buena Terra Way, Scottsdale, Arizona 85250, but that the drywall that Respondent had constructed on all three levels and in the basement was cracking on the ceiling and the walls. 3. The Registrar assigned the matter to Investigator Paul Smith for investigation. Investigator Smith performed a jobsite inspection and, on March 22, 2019, issued a directive to Respondent requiring it to correct the cracking drywall on the ceilings and walls on all three levels and the basement of Complainant’s home.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received 7/22/2019 ROC Legal The deadline for Respondent to comply with the directive was April 12, 2019, at 5:00 p.m. 4. After Complainant informed Investigator Smith that Respondent had failed to

comply with the directive, he referred the matter to the Registrar’s Legal Department.

5. On April 18, 2019, the Registrar issued a Citation against Respondent’s

license, charging cause to suspend or revoke Respondent’s contractor’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). The

Registrar sent the Citation to Respondent at its address of record.

6. On or about May 2, 2019, Mr. Davis filed a written answer to the Citation on

behalf of Respondent, stating that he had just received the Citation via email and that

had not received notice of the complaint or the directive because he had filed an

address change with the Registrar, but that the Registrar had not processed the

address change. Mr. Davis stated that Respondent was no longer performing any type

of construction projects, but that he would like to rectify the items on the directive.

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

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

8. On May 21, 2019, the Registrar issued a Notice of Hearing, setting a hearing before OAH on July 9, 2019, at 8:30 a.m. The Registrar sent the Notice of Hearing to Respondent at its new address of record, 10301 N. 70th St. #217, Paradise Valley, Arizona 85253. 9. A hearing was held on July 9, 2019. Complainant testified on her own behalf. Investigator Smith 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 seventeen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized director, 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 license.

Received 7/22/2019 ROC Legal 11. Complainant testified that over three-quarters of the drywall on the walls and ceilings of her remodeled residence was cracked and that, since November 2018, Respondent had stopped respondent to her complaints.

12. Investigator Smith testified that he confirmed that the complaint that

Complainant filed with the Registrar was timely because the certificate of occupancy for

the remodel and been issued on April 23, 2018. Investigator Smith testified that

contractors are required to warranty drywall against cracking for one year.

13. Investigator Smith testified that the majority of Complainant’s house had

drywall cracks on the ceilings and walls. He informed both parties at the jobsite

inspection that he would be issuing a directive.

14. 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

Respondent’s license has never been disciplined, Respondent’s license was voluntarily

cancelled on April 16, 2019.

CONCLUSIONS OF LAW

1. The Notice of Hearing that the Registrar mailed to Respondent at its new address of record was reasonable and Respondent is deemed to have received notice of the hearing.1 2. The cancelled status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.2 This matter lies within the Registrar’s jurisdiction.3 3. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.4

1 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). Received 7/22/2019 ROC Legal 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”5 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.”6

5. Complainant established that most of the drywall that Respondent

constructed is cracking throughout her residence and that Respondent failed to comply

with the Registrar’s March 22, 2019 directive. Complainant therefore established

cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-

1154(A)(3),7 namely A.A.C. R4-9-108,8 and A.R.S. § 32-1154(A)(22).9

RECOMMENDED ORDER

In view of the foregoing, on the effective date of the final order in this matter, IT IS ORDERED that Respondent Skylar Parker Construction and Development Inc.’s License No. ROC 302084 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 license shall be revoked, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent,

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 6 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 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 7/22/2019 ROC Legal 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, July 22, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors