ALJDEC

97F-2389-ROC · Registrar of Contractors · 1998-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 1998 APPEARANCES: Complainant: Von Jensen, President, on behalf of ACW Ltd., dba American Carpet Wholesalers; Co-Complainant: Montgomery Lee, Assistant Attorney General, on behalf of Registrar of Contractors; Respondent: Terry Dunmire, Esq., with Eric Hicks, on behalf of Class B License 096937, Class B of Homes by EJH Development

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

The hearing in this matter was held on October 8, 1998 to determine whether Respondent timely answered the Citation and Complaint issued on May 21, 1997, by the Registrar of Contractors ( “Registrar” ) and if such answer was timely, then whether Respondent violated Arizona Contractors Law as alleged by Complainant and as cited by the Registrar. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT

1. Respondent Homes by E J H Development, Inc., ( “E J H Dev. Inc.” ) holds License No. 096937, Class B, issued by the Registrar on April 6, 1993. 2. On April 3, 1997, Complainant ACW Ltd., dba American Carpet Wholesalers ( “ACW” ) , filed a complaint with the Registrar of Contractors alleging $907.96 was due from “Eric Hicks dba EH Development; Klassic Rock Investments” as the restocking fee for the balance of vinyl and carpet not paid for approximately two months earlier. 3. On April 7, 1997, the Registrar’s inspector, Jeff Betts, mailed the required written notice of complaint no. 97-2389, and a copy of the complaint, to E J H Dev. Inc., asking that Respondent contractor inform him of any error or omission in the complaint, and requesting that immediate attention be given to the complaint in order to prevent disciplinary action against Respondent’s license. Mr. Betts mailed additional correspondence to Respondent on May 14, 1997. 4. That initial notice and all subsequent mailings from the Registrar to E J H Dev. Inc., were directed to the mailing address of: P.O. Box 43826, Phoenix, Az 85080-3826. 5. Subsequently, on May 21, 1997, the Registrar issued and mailed CITATION AND COMPLAINT No. 97-2389 to Respondent E J H Dev. Inc., charging possible violations of A.R.S. § 32-1154.A.7, .11, and .23. The CITATION AND COMPLAINT contained the following language: In accordance with the provisions of A.R.S. § 32-1155, YOU ARE DIRECTED TO FILE YOUR WRITTEN ANSWER to the attached complaint with the Registrar of Contractors NO LATER THAN TEN (10) DAYS after the date this Citation was mailed, as shown below. (An additional five (5) days is allowed for all Citations sent by mail instead of being hand delivered). IMPORTANT: Regardless of any prior oral or written responses you have made to the matters covered by the complaint, a timely answer must nevertheless be filed in writing following your receipt of these documents. A copy of your answer must be mailed to the Complainant. You are advised that your failure to answer within 10 days shall be deemed an admission by you of the charges made by the Complainant, and the Registrar of Contractors may increase your bond and suspend or revoke your license without any further proceedings pursuant to A.R.S. § 32-1011 et seq. (Emphasis in original.)

6. Subsection 64 of Exhibit 1 demonstrates, and it is so found, that the CITATION AND COMPLAINT was sent on the day issued ( May 21, 1997 ) to Respondent at P.O. Box 43826, Phoenix AZ 85080-3826 by registered mail, but was returned to the Registrar on June 10, 1997. 7. Respondent’s assertion, provided through the testimony of its qualifying party and principal, Eric J. Hicks, and by reference to its Exhibit 2 ( “TRANSACTION REPORT”, dated May 26, 1997 ), and to excerpts from the multiple pages of Complainant’s Exhibit 1, is that through Hick’s efforts, whether by fax or otherwise, a timely written answer was filed on or about May 26, 1997, but in any event, within the fifteen days allotted, so no later than June 5, 1997, and notwithstanding that the CITATION AND COMPLAINT had been returned to sender. With regard to the specific documents he alleges constitute the timely answer, Hicks contends that his facsimile Transaction Report of May 26, 1997 (Exhibit 2), confirms that he faxed to inspector Betts at the Registrar’s fax line, 542-1599, documents identified in his “Facsimile “ cover sheet of that same date ( subsection of Exhibit 1) five pages, including both his written request for an administrative hearing in correspondence dated May 24, 1997, on EJH Development letterhead and the foregoing facsimile cover sheet dated “Monday, May 26, 1997 @ 7:20 AM” stating “ENCLOSED IS A COPY OF EJH DEVELOPMENT’S REQUEST FOR AN HEARING” ( Capitalization in original ). 8. According to Hicks testimony, such written/faxed answer to the Registrar’s May 21, 1997 CITATION AND COMPLAINT was separate from and in addition to Hick’s several verbal communications with inspector Betts over a period of time during which he disputed the nature and specifics of the complaint, and during which time he made other apparently unsuccessful efforts at faxing documents to the inspector. However, while inspector Betts did not testify, his hand-written “Report of Inspection” notes ( for complaint no. 97-2389, for the period April 3, 1997, through May 14, 1997) comprise subsection 62 of Exhibit 1, and make no mention of any written or verbal communications to or from Mr. Hicks, or anyone else on Respondent’s behalf, during that period of time, or subsequently. 9. The Registrar argues that notwithstanding whatever dates appear on the documents identified by Respondent as his answer, or as corroboration of when that answer was filed, the copies contained in its Exhibit 1 comprise a certified record of its file, as compiled in its normal course of business, and that record does not confirm either any filing by Respondent or receipt by the Registrar of any document in any manner from or on behalf of Respondent E J H Dev. Inc. at any time between the issuance of the CITATION AND COMPLAINT on May 21, 1997, until July 23, 1997, when the Registrar’s legal department received and date-stamped a fax by Hicks (subsection 52 of Exhibit 1). That fax, received about a month and a half after the expiration of the June 5, 1997 deadline for the filing of a timely answer, included, for the first time, according to the Register’s counsel, those documents asserted to be Respondent’s timely answer. 10. Complainant ACW, through the testimony of Von Jensen, also indicated that it did not receive any copy of an answer filed by E J H Dev. Inc. during the time allotted for such an answer by the CITATION AND COMPLAINT. 11. Subsequent to the May 21, 1997, CITATION AND COMPLAINT, but prior to the Registrar’s date-stamped receipt of the documents from Respondent on July 23, 1997, the Registrar then issued its DECISION AND ORDER on June 18, 1997, which found that “Respondent has not filed a written answer to the citation as required by law” and concluded that “Respondent is in violation of the provisions of A.R.S. § 32-1154 as charged in the citation herein.” The Registrar therefore ordered that the “license of Respondent be revoked on the effective date of this Order ( thirty-five [35] days after the date of mailing …)” 12. Subsection 64 of Exhibit 1 demonstrates, and it is so found, that the DECISION AND ORDER was sent on the day issued ( June 18, 1997 ) to Respondent at P.O. Box 43826, Phoenix AZ 85080-3826 by registered mail, but was returned to the Registrar on July 8, 1997, as unclaimed. 13. On August 18, 1997, the Registrar then issued DENIAL OF PETITION FOR REHEARING, “for the reason that good and sufficient cause for Respondent’s failure to file a timely and proper answer to the Citation has not been shown, nor has any other compelling legal or factual basis for the granting of a rehearing been demonstrated.” 14. Prior to that final administrative decision becoming final and in full force and effect, Respondent sought a stay order from Superior Court, which was denied in a minute entry on October 15, 1997. 15. For that reason, the Registrar issued an Order on December 2, 1997, that Respondent’s license be revoked. 16. By Superior Court minute entry of February 9, 1998, the matter was remanded to the Registrar, and based on the Registrar’s request of July 7, 1998, Notice of Rehearing was issued on August 20, 1998, thereby providing jurisdiction for this tribunal’s recommended decision, with a determination on the merits of the original charged violations contingent, by agreement of the parties and operation of law, on an initial determination that Respondent did timely file a written answer to the Citation and Complaint. 17. By ORDER AMENDING CAPTION issued on August 21, 1998, the Registrar ordered that the Registrar of Contractors be added as a Co- Complainant in this case.

APPLICABLE LAW

1. A.R.S. § 32-1155 provides as follows, in pertinent part: A. Upon the filing of a written complaint with the registrar charging a license with the commission…of an act which is cause for suspension or revocation of a license, the registrar after investigation may issue a citation…directing the licensee, within ten days after service of the citation upon him, to appear by filing with the registrar his written answer to the complaint showing cause, if any, why his license should not be suspended or revoked. Service of citation upon the licensee shall be fully effected by mailing a true copy thereof, together with a true copy of the complaint, by registered mail in a sealed envelope with postage prepaid and addressed to the licensee at his latest address of record in the registrar’s office. Service of the citation shall be complete at the time of deposit in the mail. B. Failure of the licensee to answer shall be deemed an admission by him of his commission of the act or acts charged in the complaint and thereupon the registrar may forthwith suspend or revoke his license.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter pursuant to A.R.S. § 32-1104.A 2. In this rehearing, the Co-Complainants have the initial burden of demonstrating, by a preponderance of the evidence, that Respondent failed to timely answer the CITATION AND COMPLAINT. Only if that burden were not met would it be necessary to consider the merits of the specific statutory violations as originally charged. Because it is concluded that the initial burden has been met, any such additional burden has become moot, notwithstanding that evidence and testimony was adduced and presented on those merits, given that the failure to answer, if proven, is deemed by statute to be an admission by Respondent of the commission of the act(s) charged. 3. Proof by a “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 ( 9th Cir. BAP (Ariz.) 1994 ). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed., 1990). 4. In this instance, it is concluded that the probative and credible weight of the evidence, by greater than a preponderance, establishes that Respondent failed to file, within the fifteen days allotted, a written answer to the CITATION AND COMPLAINT issued by the Registrar on May 21, 1997. Since such proof of a negative may be considered problematic, Exhibit is further found and concluded to be an accurate and complete record, compiled by the Registrar in the normal course of business, of any and all written documents “filed” in any manner by Respondent with the Registrar of Contractors which might otherwise be considered his answer to the CITATION AND COMPLAINT. As such, that record is found and concluded to contain no document with any indicia of reliability verifying its filing date which could reasonably be construed to be a timely-filed answer. The Co-Complainants have therefore met their burden of proof on this issue. 5. Therefore, because Respondent failed to timely answer the CITATION AND COMPLAINT, and its charges are deemed admitted, it is found and concluded that Respondent is in violation of the provisions of A.R.S. § 32-1154 as charged.

RECOMMENDED DECISION

On the basis of the foregoing, it is recommended that, commencing on the effective date of the final order entered in this matter, the license of Respondent be revoked. DONE this day, October 27, 1998.

_________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826