ALJDEC

00F-1943-ROC · Registrar of Contractors · 2000-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2000; 9:20 A.M.; Phoenix, Arizona APPEARANCES: Complainant: Marvin Smith, President Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is a disciplinary proceeding, brought pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-1154. Based upon the evidence presented at the hearing, Administrative Law Judge (“ALJ”) George A. Schade, Jr. submits this Recommended Decision and Order to the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT BACKGROUND 1. Complainant Los Abrigados Homeowners Association, Inc. (“Los Abrigados”) filed a complaint with the Registrar on December 30, 1999, alleging that Respondent The Renaissance Group, Inc. (“Renaissance”) failed to complete several items and to complete others with good workmanship. Mr. Marvin Smith is the association’s President. 2. Renaissance holds License No. 108913, Class B, issued by the Registrar on August 21, 1995. 3. On September 24, 1999, the Registrar canceled Renaissance’s License No. 108913, Class B. 4. On March 6, 2000, Mr. Daniel E. Lafond, the Registrar’s inspector assigned to this case, made a jobsite inspection. Renaissance did not attend the inspection. 5. On March 9, 2000, Mr. Lafond issued a Corrective Work Order directing Renaissance to complete four corrective items within fifteen days. 6. On March 30, 2000, Los Abrigados requested an administrative hearing, as Renaissance had not complied with the Corrective Work Order. 7. On May 5, 2000, the Registrar issued to Renaissance Citation and Complaint No. 00-1943 alleging violations of A.R.S. §§ 32-1154(A)(3), namely the Registrar’s Rule R9-4-108, Ariz. Admin. Code; -(A)(7); and, -(A)(23). 8. On May 16, 2000, Renaissance answered the citation and complaint. Renaissance stated that it intended to complete the corrective work by June 15, 2000. 9. On May 24, 2000, the Registrar issued a Notice of Hearing scheduling a hearing on August 3, 2000, at the Office of Administrative Hearings. 10. On August 2, 2000, Mr. Lafond conducted a prehearing inspection. 11. On August 3, 2000, a hearing was held. At the hearing, Mr. Smith testified. Mr. Lafond testified. Renaissance did not appear at the hearing either through a corporate or a legal representative. The start of the hearing was delayed twenty minutes to give Renaissance additional time to travel to the hearing, but it did not appear. The Office of Administrative Hearings did not receive any calls or letters from Renaissance regarding Renaissance’s appearance at the hearing. The ALJ took official notice of the file in the possession of the Office of Administrative Hearings and of Renaissance’s prior two-year disciplinary record with the Registrar. THE UNFINISHED CORRECTIVE WORK 12. As of August 2, 2000, the only corrective work which Renaissance has not completed is the purchase and installation of six custom ceramic street signs, which was item no. 2 of the Corrective Work Order. These are street signs for four East/West streets and for one North/South street. The signs are 24 inches by 5 inches in size. 13. Renaissance completed by June 20, 2000, the other three corrective items of the Corrective Work Order, with the exception of the replacement of a missing post (item no. 4 of the Corrective Work Order). But Los Abrigados has waived compliance with this item and does not wish to have the post replaced or the stub removed. 14. Between June 20, 2000, and August 2, 2000, Los Abrigados actively tried to obtain Renaissance’s compliance with the installation of the missing street signs, but Renaissance did not take action to complete this corrective item. 15. Mr. Lafond testified that the only remaining corrective work to be completed is the installation of the six street signs. RENAISSANCE’S PRIOR DISCIPLINARY RECORD 16. The records of the Registrar show that during the past two years nine complaints, including this complaint, have been filed against Renaissance. Eight complaints alleged poor workmanship and one complaint alleged abandonment. The Registrar suspended Renaissance’s License No. 108913, Class B, from June 22, 1999, through July 15, 1999. CONCLUSIONS OF LAW APPLICABLE STATUTES AND RULES A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*** 3. Violation of any rule adopted by the Registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

***

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.”

Rule R4-9-108(A), supra, states, “All work shall be performed in a professional and workmanlike manner.”

CONCLUSIONS OF LAW 1. The complainant has the burden of proof, and the standard of proof on all issues is the preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] 2. Renaissance violated A.R.S. § 32-1154(A)(3), specifically, the Registrar’s Rule R4-9-108(A), supra. The Registrar is charged with determining workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.”[4] Renaissance did not perform in a good workmanlike manner. 3. Renaissance did not violate A.R.S. § 32-1154(A)(7). Its failure to install the six street signs does not reach the level of “wrongful” acts or omissions which have “substantially injured” Los Abrigados.[5] 4. Renaissance violated A.R.S. § 32-1154(A)(23), as it failed to comply fully and timely with the Corrective Work Order “without valid justification.”[6] 5. The fact that Renaissance’s license was canceled does not preclude the Registrar from sanctioning Renaissance, including revocation of its License No. 108913, Class B, for statutory violations found in this matter.[7] 6. The Registrar “may…permanently revoke” a contractor’s license for violations, by acts or omissions, of any of the provisions of A.R.S. § 32- 1154(A).[8] The preponderance of the evidence and the current status of the license support the sanction of revoking Renaissance’s License No. 108913, Class B. 7. If Renaissance “is found to have violated any of the statutory provisions charged in this case,” the ALJ “may properly consider [Renaissance’s] prior disciplinary record and current license status as a matter in mitigation or aggravation when formulating and submitting an appropriate recommended disposition of this matter.”[9] RECOMMENDED ORDER It is recommended that the Registrar: 1. Revoke Renaissance’s License No. 108913, Class B, unless and until the Registrar receives written notification that Renaissance has completed, or has caused to be completed through other licensed contractors, the installation of the six ceramic street signs as required in the Corrective Work Order. 2. Close Citation and Complaint No. 00-1943, if this corrective action is completed satisfactorily prior to the effective date of the Registrar’s order. SUBMITTED this 3rd day of August, 2000.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on August 3, 2000, for distribution to the parties, to:

Michael P. Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007

George A. Schade, Jr. ----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Rule R2-19- 119, supra. [2] Morris K. Udall, Arizona Law of Evidence, § 5 (1960). [3] BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). [4] Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), supra. [5] A.R.S. § 32-1154(A)(7). [6] A.R.S. § 32-1154(A)(23). [7] A.R.S. § 32-1154(C). [8] A.R.S. § 32-1154(B). [9] Notice of Hearing, p. 2; Rule R4-9-117, supra.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826