ALJDEC decisions subject to certification as final

2019A-02585-CHC-ROC · Registrar of Contractors · 2019-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2019, at 8:30 a.m. APPEARANCES: Ken Kalyta (“Complainant”) appeared on his own behalf; G R Taylor Enterprises Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on January 9, 1999, the Registrar issued License No. ROC 141823 for Specialty Dual CR-42 Roofing to Respondent. Respondent’s address of record is 615 E. Wigwam Blvd., Litchfield Park, Arizona 85240- 4416. On May 17, 2019, Complainant filed a complaint with the Registrar against Respondent’s license, alleging that Respondent had performed poor work on a walking deck and roof repair at Complainant’s house at 12412 W. Encanto Blvd., Avondale, Arizona 85392. The Registrar assigned the matter to Investigator Jack Grimm for investigation. Investigator Grimm performed a jobsite inspection on July 12, 2019, and, on July 15, 2019, issued a directive to Respondent requiring to perform the following repairs on or before August 1, 2019, at 5:00 p.m.: 1. Correct the bubbles and/or blisters showing on the surface of the rear walk out deck for a uniform and consistent finish.

2. Per workmanship standards: Minor ponding up to 3/16 inch is acceptable. Correct if needed location of ponding greater than 3/16 inch.

On or about August 26, 2019, Complainant contacted Investigator Grimm and stated that Respondent had not fully complied with the directive. Investigator Grimm referred the matter to the Registrar’s Legal Department. On August 29, 2019, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke Respondent’s contractor’s licenses 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. On or about September 12, 2019, Respondent filed a written answer to the Citation, stating that it had completed all the work required by the directive. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On October 3, 2019, the Registrar issued a Notice of Hearing, setting a hearing before OAH on November 4, 2019, at 8:30 a.m. The Registrar sent the Notice of Hearing to Respondent at its address of record. A hearing was held on November 4, 2019. Complainant testified on his own behalf. 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 fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized officer, 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. Additional Evidence Investigator Grimm testified that the Registrar and Complainant allowed Respondent approximately six weeks for repairs. He understood that, at some point, Respondent performed additional work on the project. Inspector Grimm testified that he performed a prehearing jobsite inspection on the property on November 1, 2019. Inspector Grimm testified that because, although it had rained, the roof did not have excessive ponding, Respondent’s repairs to the second item on the directive complied with the Registrar’s workmanship standards. Investigator Grimm testified that the finish on the walk deck above the patio at the rear of the house still showed spots with a heavy, rough texture and spots with a smooth texture. The inconsistent areas of the walk deck did not comply with the Registrar’s minimum standards. 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. Respondent’s license is current and in good standing and no discipline has been taken against the license on the current record. Complainant’s complaint appears to be the only one pending against the license. CONCLUSIONS OF LAW The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.[1] This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Complainant established that Respondent’s initial application of the finish on the walk deck at Complainant’s house does not comply with the Registrar’s workmanship standards and that Respondent failed to correct the finish to comply with the directive. Complainant therefore established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),[5] namely A.A.C. R4-9-108,[6] and A.R.S. § 32- 1154(A)(22).[7] RECOMMENDED ORDER In view of the foregoing, on the effective date of the final order in this matter, IT IS ORDERED that Respondent G R Taylor Enterprises Inc.’s License No. ROC 141823 shall be suspended for one (1) business day. IT IS FURTHER ORDERED that Respondent shall pay the sum of $250.00 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, November 7 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-1101 et seq. [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] 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.”

[6] 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.” [7] 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.”

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