ALJDEC

98F-O978197-BFS · Department of Building and Fire Safety · 1998-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 31, 1998. APPEARANCES: Michelle Woods, Assistant Attorney General, appeared representing Complainant, the Department of Building and Fire Safety (“Department”). Francisco F. Alvarez, Respondent doing business as Alvarez Site Coordinators and holder of class I-10G number 6501.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in these consolidated matters was held for the purpose of determining whether Respondent violated state law as alleged and cited by the Department. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Francisco F. Alvarez, Respondent, does business as Alvarez Site Coordinators and is holder of class I-10G number 6501. 2. The instant matter arises out of three Complaints filed by the Department alleging that Respondent has violated state law. Two of the Complaints were consolidated and a hearing held before the Office of Administrative Hearings on April 30, 1998. During the hearing, the parties settled the matters. ALJ Allen W. Reed vacated the hearing and integrated the essential terms of the parties’ agreement into his Order of May 1, 1998. That Order states the following: 1. Case No. 98F-0978094--The Respondent shall provide to the Department, certain blueprints, plans or specifications for a garage, in order that an inspection may be accomplished. Documentation which has been provided to the Department for the eaves is satisfactory. 2. Case No. 98F-0978148-BFS--The Respondent shall install the correct supports. 3. The Department shall determine if there are other cases pending against the Respondent and shall include those cases if any, as part of the agreement to be entered by the parties. 4. The Respondent shall turn in (surrender) his Class 10-G License No. 6501. This will be treated as an expired license by the Department. It is presumed the surrender will be in a in a timely manner once the license is no longer required to comply with the terms of the settlement agreement. 5. The Respondent shall pay an administrative penalty in the amount of $250.00 to the Department.

3. Respondent failed and/or refused to sign the Stipulation and Order memorializing the agreement. 4. On or about July 21, 1998, the Department issued a new Notice of Hearing concerning the three Complaints noted above, which were consolidated. 5. The record evidences that Respondent was given fair notice of the August 31, 1998, hearing in these matters. Nevertheless, Respondent failed to appear. Respondent also failed to answer any of the three Complaints in issue. 6. Consequently, the Department moved this Judge to deem the allegations of the three Complaints admitted, pursuant to law. The three Complaints allege as follows, in part: Complaint 97-8/094 Respondent failed to provide state-approved plans on site for the inspection of the construction of the garage. Respondent also failed to provide manufacturer’s approval for removal of the unit eves. This is a violation of Arizona Administrative Code [(A.A.C.)] Respondent4- 34-304.

Complaint 97-8/148 Respondent failed to correctly install centerline supports a required [sic] by the manufacturer’s installation instructions. Support requires a quad 4” x 16” x 16”. This is a violation of Arizona Administrative Code Respondent4-34-202(A).

Complaint 97-8/197 Respondent failed to correctly install the rear center line support. The support is not in contact with the floor. This is a violation of Arizona Administrative Code Respondent4-34-202(A).

7. There are no mitigating circumstances evidenced in this matter; indeed, Respondent’s failure to sign and comply with the Stipulation and Order are aggravating factors.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §41-2186 provides, in part, that the Department may suspend or revoke a license issued by the Department if the licensee commits the following: 2. Violation of any rule adopted by the board pertaining to construction of any unit . . . . xxx 7. Departure from or disregard of any code or any rule adopted by the board.

Section 41-2181(B) adds, in part: Failure of the licensee to answer shall be deemed an admission by the licensee of the cited complaint . . . .

CONCLUSIONS OF LAW 1. The Department has jurisdiction over these consolidated matter pursuant to §41-2171, et seq. 2. To justify disciplinary action against Respondent, the Department must demonstrate by a preponderance of the evidence that Respondent violated state law. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “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, 654 (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). 2. Because Respondent failed to answer the Complaints in issue, or appear during the hearing, the allegations contained in each of the Complainants in issue, partly outlined in paragraph 6 of the Finding of Fact above, are deemed admitted. 3. The Department sustains its burden of demonstrating that Respondent has violated state law; Respondent’s actions and omissions outlined in paragraphs 2 and 6 of the Finding of Fact above constitute violations of R4-34-202(A), R4-34-304, and §§41-2186(2), and (7).

. . . RECOMMENDED DECISION In view of the foregoing, it is recommended to the Department that Respondent’s license be revoked and that he be required to comply with the penalty terms of the settlement reached between the parties on April 30, 1998. Done this day, August 31, 1998.

_________________________________ Kip M. Micuda Administrative Law Judge

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

Mr. N. Eric Borg, Director Department of Building & Fire Safety ATTN: Michelle M. Castaneda E. Virginia, Suite 100 Phoenix, AZ 85004

By _______________________________

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