ALJDEC decisions subject to certification as final

2021A-01236-CHC-ROC · Registrar of Contractors · 2021-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Linda Lee Richards,

COMPLAINANT

Rebecca West Olds & Kevin Allen Olds

DBA: All About Fencing,

License No. ROC 172932,

RESPONDENT

No. 2021A-01236-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2021

APPEARANCES: Complainant Linda Lee Richards appeared on her own behalf. Respondent Rebecca West Olds appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Rebecca West Olds & Kevin Allen Olds doing business as All About Fencing (Respondent) is the holder of License No. 172932 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 10, 2019, Linda Lee Richards (Complainant) signed a contract with Respondent for the installation of a fence and a double ornamental iron gate. The total contract price for the project was $3,200.00, and Complainant paid the contract in full.

In December 2019, the gate was installed, but Complainant had issues with the gate and addressed those concerns to Respondent.

In January 2020, Respondent agreed that the gate was not acceptable and agreed to manufacture and install a new gate.

During the next year, Complainant and Respondent had numerous back and forth conversations regarding the gate. Eventually, in January 2021, Respondent offered to refund Complainant the contract price. Complainant was not satisfied with a full refund as she believed she had suffered damages that needed to be addressed by Respondent.

On or about March 22, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. After a jobsite inspection, Investigator Corlett issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on or before May 21, 2021.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Double drive gates installed are unacceptable. Top arch if "flat". Gates do not close/operate properly. Contractor agreed to properly build and install new replacement gates.

Investigator’s Observation: Respondent agreed to build & install new gates as of 01/23/21 proposal (copy attached). Several emails between the parties (received from Respondent at onsite meeting 4/12/21) indicated that a cash refund may have been agreed to. Respondent stated that Complainant was sent a cashiers check for $2,320.00 via Certified mail to satisfy the dispute but the Respondent cannot provide any proof that the Complainant received and or cashed the check.

RESPONDENT SHOULD HONOR THE TERMS OF HER 01/23/21 PROPOSAL TO BUILD AND INSTALL NEW GATES. IF THE PARTIES WANT TO COME TO A FINANCIAL RESOLUTION THEN THEY SHOULD INFORM THE REGISTRAR OF THE TERMS OF THE AGREEMENT AND WHEN IT IS COMPLETED.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Contractor should remove excess bolts and or holes in masonry walls and repair the stucco.

Investigator’s Observation: Assuming the Respondent chooses to provide and install new replacement gates then the Respondent should properly remove/ repair all the excess bolt holes and patch/ repair the stucco matching the surrounding area as closely as possible.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent attempted to complete the repair work. The parties agreed to a three week extension of the deadline to comply with the written directive. After the extended deadline in expired, Investigator Corlett was notified the corrective work had not been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Corlett testified that the Friday prior to the hearing, he visited the jobsite and noted the original gates were laying down on the ground and no gates were installed at that time.

Complainant testified that Respondent kept promising that it would install new gates, but the new gate was never installed. Complainant recounted the emotional toll Respondent’s actions took on her during the two year time period in question.

Ms. Olds acknowledged that the gate installed by Respondent was not in compliance with the Registrar’s workmanship standards. Ms. Olds testified that Respondent attempted to install the new gate, but Complainant attacked the workers and called the police, thus making it impossible for Respondent to install the new gate. Upon further questioning, Ms. Olds acknowledged that the incident she described occurred on or about August 9, 2021, well after the extended deadline in the written directive expired.

Administrative notice is taken of Respondent’s prior License record on September 8, 2021. Such prior License record reflects that Respondent’s License No. 172932 was first issued on March 27, 2002, and is active. Such prior License record also reflects that there were no other open complaints and two prior resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not complete the corrective work following the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 172932 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, September 8, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000