ALJDEC decisions subject to certification as final

2021A-05919-CHC-ROC · Registrar of Contractors · 2022-07-04

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Parker

COMPLAINANT,

Ed Fuller Construction, LLC

License No. ROC 324859,

RESPONDENT.

No. 2021A-05919-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 15, 2022

APPEARANCES: Complainant Brian Parker appeared on behalf of himself.

No one appeared on behalf of Respondent Ed Fuller Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On May 20, 2021, Complainant Brian Parker and Respondent Ed Fuller Construction, LLC (Ed Fuller) entered into a contract wherein Ed Fuller would repair and replace Mr. Parker’s roof.

2. On June 7, 2021, Ed Fuller started work.

3. On November 8, 2021, Ed Fuller stopped work.

4. Mr. Parker filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor workmanship on the part of Ed Fuller. The complaint included 241 complaint items.

5. The ROC assigned the complaint to its Investigator, Arlo Houston.

6. On January 4, 2022, Investigator Houston conducted a job-site inspection.

7. On January 11, 2022, Investigator Houston conducted a second job-site inspection.

8. On February 28, 2022, the ROC issued a Directive to Ed Fuller. Through the Directive, the ROC directed Ed Fuller to correct all of the items listed in the complaint by 5:00 p.m., on March 17, 2021, with the exception of complaint items 4, 19, 51, 54, 59, 63, 66, 86, 95, 97, 100, 101, 107, 110, 112, 117, 118, 119, 120, 121, 124, 127, 128, 131, 135, 137, 140, 141, 143, 146, 147, 155, 159, 162, 165, 167, 174, 180, 185, 192, 193, 194, 199, 206-210, 211, 213, 214, 215, 217, 219, 224, 226, 227-230, 233, 234, 236, 239, and 241.

9. Investigator Houston concluded that complaint items 19, 51, 54, 59, 63, 86, 95, 101, 110, 118, 119, 124, 127, 128, 131, 135, 137, 141, 143, 147, 155, 162, 167, 180, 192, 193, 194, 199, 206-210, 213, 215, 219, 224, 226, 227-230, 233, 236, 239, and 241 were duplicates of other complaint items.

10. Ed Fuller failed to correct the items listed in the Directive by March 17, 2021.

11. On April 5, 2022, the ROC issued a Citation against Ed Fuller’s license. Through the Citation, the ROC notified Ed Fuller that it had found cause to charge Ed Fuller with violations of Arizona Revised Statues (A.R.S.) sections (A)(3) and (22); Arizona Administrative Code R4-9-108(A) and (B).

12. Ed Fuller filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. A hearing held on June 15, 2022.

15. At hearing, Mr. Parker testified on behalf of himself and submitted exhibits 1 through 104. ROC Investigator Mike Springer testified regarding Investigator Houston’s investigation of the complaint and the issuance of the Directive.

16. Mr. Parker explained that Ed Fuller performed poor work in connection with the roofing project.

17. No one appeared on behalf of Ed Fuller at the hearing on June 15, 2022.

No one filed a request to appear telephonically on behalf of Ed Fuller. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Ed Fuller through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Ed Fuller did not present any evidence to defend its license.

18. Administrative notice is taken of Ed Fuller’s prior License record on July 4, 2022. Such prior License record reflects that License No. 324859, was first issued to Ed Fuller on June 21, 2019, and is active. Such prior License record also reflects that there are two open complaints against against License No. 215939. Such prior License record reflects that one complaint resulted in discipline against License No. 324859.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violation 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 Administrative Law Judge may consider the ROC’s administrative

record. See A.A.C. R4-9-118.

4. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A) and thereby of A.R.S. § 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent did not perform work in accordance with professional industry standards, which is a violation of A.A.C. R4-9-108(B) and thereby of A.R.S. § 32-1154(A)(3).

6. The preponderance of the evidence shows that Respondent failed to comply with the Directive, without valid justification, which is a 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 of Contractors shall suspend License No. ROC 324859 issued to Ed Fuller Construction, LLC, for 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, July 4, 2022.

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 is forty days after the date of that certification.

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary