ALJDEC decisions subject to certification as final

2022A-03695-CHC-ROC · Registrar of Contractors · 2022-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gene Hutsell

COMPLAINANT,

Bill's Awnings, Inc.

DBA: Bill’s Awning and Construction Co

License No. ROC 090162,

RESPONDENT

No. 2022A-03695-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 12, 2022

APPEARANCES: Complainant Gene Hutsell appeared on behalf of himself. Daniel Tharp appeared on behalf of Respondent Bill's Awnings, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

1. On or about May 7, 2021, Complainant Gene Hutsell and Respondent Bill’s Awnings, Inc. (BA) entered into a construction contract wherein BA would attach a carport to Mr. Hutsell’s existing garage.

2. On or about November 3, 2021, BA started and stopped work at

Mr. Hutsell’s home.

3. On or about May 5, 2022, Mr. Hutsell filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor work on the part of BA.

4. On or about June 10, 2022, ROC Investigator Jim Dimond conducted a job-site inspection.

5. On or about June 14, 2022, the ROC issued a Directive to BA. Through the Directive, the ROC required that BA correct the following complaint items no later than 5:00 p.m. on July 5, 2022. The June 14, 2022 Directive provided, in relevant part, as follows:

Compliance Item: 1 - Company did not schedule concrete footings inspection and work permit cannot be signed off by Yavapai building department

Investigator’s Observation: A small aluminum cover was installed over a small driveway at the detached garage. There are 2 posts holding the cover up at the north end and they are installed on spread footings. The respondent dug the footings, reportedly installed rebar and placed the concrete without the Yavapai County Development services inspecting the footings prior to pouring. The county is not accepting the installation. The respondent is to comply with the requirements of Yavapai county development services in an appropriate manner. Governing Rule: ARS 32-1154.A.2

6. BA failed to comply with the Directive by July 5, 2022.

7. On July 28, 2022, the ROC issued a Citation against BA’s license alleging that BA violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), (A)(22), and Arizona Administrative Code R4-9-10(a) and (b).

8. Mr. Hutsell filed a timely response to the Citation.

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

10. At hearing, Mr. Hutsell testified on behalf of himself. ROC Investigator Dimond testified regarding the investigation of the complaint and the issuance of the Directive. Daniel Tharp testified on behalf of BA.

11. Mr. Hutsell testified to the effect that BA performed poor work during the construction project. Mr. Hutsell expressed that he wants the project to pass inspection.

12. Mr. Tharp is BA’s qualifying party. Mr. Tharp explained that Yavapai County Building Department did not accept the photographs that it sent to the County. Mr. Tharp stated that he takes pictures to avoid spending an extra night in to motel to wait for an inspection. Mr. Tharp stated that he tries to keep costs down for his client by submitting photographs for approval.

13. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on October 3, 2022, BA’s license was first issued on June 19, 1991, and is active. Such prior License record shows that there is only one open complaint against BA. Such prior License record shows that one complain resulted in discipline against BA’s license. Such prior License record shows that one complaint was resolved/settled.

CONCLUSIONS OF LAW

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

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 a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

6. The preponderance of the evidence shows that Respondent did not perform the work in accordance with applicable building codes and professional industry standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(b).

7. The preponderance of the evidence shows that Respondent departed from the Yavapai County Building Code during construction, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2)(b).

8. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s 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 shall suspend Bill’s Awnings’s Inc.’s license number 090162 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 Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, October 3, 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.

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001

-137160-45720000Done this day, October 3, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Bill's Awnings, Inc.

DBA: Bill’s Awning and Construction Co

7602 E. Main St.

Mesa, AZ 85207

[email redacted]

Gene Hutsell

7475 E. Autmn Lane

Prescott Valley, AZ 86315

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000