ALJDEC

00F-2241-ROC · Registrar of Contractors · 2000-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On October 2, 2000 and November 29, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Attorney D. Jay Ryan represented Dr. Frederick Dettmann (the “Complainant”). Mr. Thomas Rosenthal (the “Respondent”) appeared on his own behalf on October 2, 2000. The Respondent did not appear on November 29, 2000. Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

BACKGROUND 1. On September 29, 2000, the Office of Administrative Hearings received a Motion to Continue from the Respondent, requesting a continuance in this matter because an important witness could not appear for the hearing scheduled for October 2, 2000 because of a death in the witness’ family. On September 29, 2000, Administrative Law Judge Mark Silver denied the Respondent’s Motion to Continue.

2. The Respondent, the Complainant and Mr. Ryan appeared for the hearing scheduled in this matter for October 2, 2000. Shortly after convening this hearing, the undersigned Administrative Law Judge and the parties discussed a possible agreement to complete the project at issue in this matter. The parties agreed to resolve this matter as follows: 1. The Respondent agreed to complete this project within 60 to 90 days. 2. The Respondent agreed to work with the Complainant’s contractor (Helicol) on the project’s solar heating system. The Complainant agreed to have Helicol inspect, test and make sound the existing solar heating system equipment. 3. The Complainant agreed to have J.R. Markson Security System Company provide a copy of a report to the Respondent regarding the project’s low voltage electrical system installed by Mr. Hoffner. The Complainant agreed to allow the Respondent’s electrician (WB Electrical) the opportunity to inspect the existing low voltage electrical system. 4. The Respondent agreed to apply reasonable and best efforts to accomplish the completion of the project. 5. The Complainant agreed to provide reasonable access for the Respondent. 6. The Complainant agreed to allow the City of Scottsdale the opportunity to inspect the sewer tie to the existing structure. The Respondent agreed to obtain any necessary permits. 7. The Complainant agreed to call the Respondent prior to speaking to the Respondent’s subcontractors on project-related issues. The Complainant agreed to follow up with a fax within 2 business days. The Respondent agreed to put in writing when the Complainant could speak to the Respondent’s subcontractors on project-related issues without the Respondent being present. 8. The Respondent agreed to replace 9 sheets of plywood in the flooring of the project’s second level floor.

3. Based upon the agreement of the parties in this matter, the undersigned Administrative Law Judge ordered that the hearing scheduled for October 2, 2000 be continued to a later date if necessary. The undersigned Administrative Law Judge further ordered that the Complainant submit a written Status Report to the undersigned Administrative Law Judge by November 17, 2000.

4. On November 2, 2000, the undersigned Administrative Law Judge received a Status Report from the Complainant requesting that the hearing be rescheduled in this matter. The Complainant wrote that there had been no activity on the part of the Respondent to either meet or commence construction work. Conversely, the Complainant had properly performed under the terms of the aforementioned agreement between the parties. See Complainant’s Exhibits 1 & 2. On November 3, 2000, the undersigned Administrative Law Judge ordered that the hearing in this matter be reconvened on November 29, 2000 (full day) and November 30, 2000 (morning only).

5. On November 27, 2000, the undersigned Administrative Law Judge received a letter from Mr. Rosenthal requesting to continue the hearing scheduled in this matter for November 29, 2000 because his daughter was scheduled to have surgery on November 28, 2000.

6. On November 28, 2000, the undersigned Administrative Law Judge received a letter from Attorney D. Jay Ryan, stating that the Respondent’s daughter was scheduled for elective surgery that “must be scheduled several weeks in advance” of the surgery. Attorney Ryan argued that it appeared that the elective surgery was scheduled to conflict with the hearing scheduled in this matter. It should be noted that the Complainant is a semi-retired physician.

7. On November 28, 2000, the undersigned Administrative Law Judge denied the Respondent’s Motion to Continue. The undersigned Administrative Law Judge found that the Respondent had failed to present sufficient good cause for continuing the hearing scheduled in this matter. The undersigned Administrative Law Judge further found that the Respondent had failed to timely request a continuance pursuant to A.A.C. R2-19-106.

8. The Respondent failed to appear for the hearing scheduled in this matter for November 29, 2000 and November 30, 2000. Ron Guerra, the Respondent’s employee, appeared on November 29, 2000.

FINDINGS OF FACT 1. The Complainant is a semi-retired physician. In 1995, the Complainant lived at a home located on 9886 E. Cortez Street, Scottsdale, Arizona. In February of 1995, the Complainant purchased a small cottage (the “Cottage”) located at 4801 N. 68th Street, Scottsdale, Arizona. The Complainant testified that he desired to add a two story building to the existing Cottage. The Complainant testified that he hired a licensed architect, Mr. Edward Chavez, to design the two story addition to the Cottage.

2. On or about July 13, 1999, the Complainant and the Respondent entered into a Contractor Agreement to build the addition (the “Project”) to the existing Cottage. See Complainant’s Exhibit 3. The Contractor Agreement was drafted by the Respondent. Id. Pursuant to the terms of the Contractor Agreement, the Complainant was responsible for making progress payments to the Respondent as follows: 1. $25,000.00 Signing 2. $30,000.00 Upon delivery of OMNI Block 3. $30,000.00 Lumbar package delivery 4. $20,000.00 Roof dry-in 5. $20,000.00 Trim-out all trades Id. (Contractor Agreement - Article 4). The Contractor Agreement required the Respondent to perform “all of the work shown on the drawings and/or described in the specifications entitled Addendum to Exhibit A.” Id. (Contractor Agreement - Article 1).

3. The Addendum to Exhibit A (“Addendum”) included a set of annotated plans drafted by Mr. Chavez that had been reduced to page-sized miniatures. See Complainant’s Exhibit 3 (Addendum). These annotated plans included specific hand written modifications that the Complainant desired to include on the initial plans drafted by Mr. Chavez. Id. These modifications were reviewed and approved by the Respondent. Mr. Chavez’ initial plans and the annotated plans shall be referred to as the “Plans”.

4. On or about July 13, 1999, the Complainant and the Respondent also entered into a Promissory Note in the principal amount of $50,000.00. See Complainant’s Exhibit 3 (Promissory Note). The Promissory Note was drafted by the Respondent. Id. The Promissory Note also included a separate payment schedule for additional items. Id.

5. On or about March 10, 2000, the Complainant and the Respondent entered into a Revised Contract. See Complainant’s Exhibit 3 (Revised Contract). Pursuant to the Revised Contract, the Respondent agreed to pay all monies due to the Complainant for the storage of the Complainant’s personal goods. Id.

6. The Contractor Agreement, the Plans, the Addendum to Exhibit A, the Promissory Note and the Revised Contract represent the entire contract (the “Contract”) between the parties. See Complainant’s Exhibit 3.

7. The Complainant testified that the Project was designed to include two apartments, a laundry, a garage, a workout room and a bathroom for the outdoor pool. The Complainant testified that the Respondent promised that the Project would be completed by August 26, 1999. See Complainant’s Exhibit 3 (Contractor Agreement - Article 2). The Complainant testified that the Respondent contractually agreed to pay for the Complainant’s storage fees if the Respondent failed to timely complete the Project. Id. (Contractor Agreement - Article 2; Revised Contract).

8. The Complainant testified that he and his wife had been living in the home located at 9886 E. Cortez Street, Scottsdale, Arizona (“Cortez Home”). The Complainant testified that he relied on the Respondent’s promise to have the Project completed by August 26, 1999. The Complainant testified that he sold the Cortez Home in reliance on the Respondent’s promise to complete the Project by August 26, 1999. The Complainant testified that the escrow on the Cortez Home closed on or about November 1, 1999.

9. The Complainant testified that the Project was not completed by August 26, 1999. The Complainant testified that he had to place many of his belongings in storage. The Complainant testified that he sent numerous facsimiles and letters to the Respondent regarding the constant delays in completing the Project. See Complainant’s Exhibit 4. The Complainant testified that the Respondent was never present at the jobsite to coordinate and interact with the subcontractors. The Complainant testified that he had to interact with the subcontractors to avoid further delays in the completion of the Project.

10. Pursuant to the Contractor Agreement, the Complainant paid the Respondent $25,000.00 on July 16, 1999. See Complainant’s Exhibit 5 (Check Number 1002). On October 12, 1999, the Complainant paid $3,000.00 to Daniel Longardener. Id. (Check No. 1005). The Complainant testified that Mr. Longarden was the Respondent’s concrete subcontractor. The Complainant testified that Mr. Longarden claimed that he desperately needed to be paid for his concrete work. The Complainant testified that he was not able to contact the Respondent to inform him of Mr. Longarden’s situation.

11. Pursuant to the terms of the Contractor Agreement, the Complainant was required to pay $30,000.00 upon the delivery of the OMNI block. See Complainant’s Exhibit 3 (Contractor Agreement - Article 4). On October 12, 1999, the Complainant paid $27,000.00 to the Respondent. See Complainant’s Exhibit 5 (Check No. 1006). The Complainant testified that he deducted $3,000.00 from the $30,000.00 payment because of the direct payment to Mr. Longarden. The Complainant testified that the Respondent never objected to the direct payment of $3,000.00 to Mr. Longarden. The Complainant testified that the Respondent was about two months behind schedule at the time of the $27,000.00 payment.

12. Pursuant to the terms of the Contractor Agreement, the Complainant was required to pay $30,000.00 upon the delivery of the lumber package. See Complainant’s Exhibit 3 (Contractor Agreement - Article 4). On January 20, 2000, the Complainant paid $24,195.61 to the Respondent. See Complainant’s Exhibit 5 (Check No. 1011). The Complainant testified that he deducted $5,804.39 from the $30,000.00 payment because the Respondent was contractually required to pay for the Complainant’s storage fees if the Respondent failed to timely complete the Project. See Complainant’s Exhibit 3 (Contractor Agreement - Article 2). The Complainant testified that he had to store several items when he moved from the Cortez Home to the Cottage. The Complainant testified that the Respondent cashed the $24,195.61 check. The Complainant testified that the Respondent never billed him for the $5,804.39 deduction.

13. The Complainant testified that the Revised Contract also stated that the Respondent was responsible for paying all of the Complainant’s storage fees. See Complainant’s Exhibit 3 (Revised Contract).

14. Mr. Darren Heaney is a subcontractor who was hired by the Respondent to install the OMNI block at the Project. On February 9, 2000, the Complainant paid $10,000.00 to the Respondent and Mr. Heaney. See Complainant’s Exhibit 5 (Check No. 1013). This $10,000.00 payment was not a scheduled payment pursuant to the terms of the Contractor Agreement. See Complainant’s Exhibit 3 (Contractor Agreement - Article 4). The Complainant testified that the Respondent asked him to pay a $10,000.00 advance to Mr. Heaney because Mr. Heaney had refused to complete the installation of the OMNI block without an advance of $10,000.00. The Complainant testified that he advanced the $10,000.00 to Mr. Heaney because he wanted the Project to be completed. The Complainant testified that Mr. Heaney cashed the $10,000.00 check.

15. The Complainant testified that he has paid approximately $90,000.00 to the Respondent. The Complainant testified that the Respondent did not properly coordinate his subcontractors. The Complainant testified that the Respondent’s work was unprofessional and incomplete. The Complainant testified that the Respondent has abandoned the Project.

16. The Complainant testified that the architect’s Plans for the Project show that the ceilings should be 8 feet high. The Complainant testified that he hired Noral Enterprises to build cabinetry for the Project. The Complainant testified that the cabinetry was custom designed for 8 foot ceilings. However, the Complainant testified that the Respondent constructed 7 foot 8 ½ inch ceilings in the Project. The Complainant testified that the cabinetry had to be modified because of the Project’s lower ceilings. The Complainant testified that Noral Enterprises charged $2,233.00 (plus tax) for the modifications to the cabinetry. See Complainant’s Exhibit 6.

17. The Complainant testified that he hired Noral Enterprises to build the cabinetry in July of 1999 based on the Respondent’s promise to complete the Project in August of 1999. However, the Complainant testified that the Respondent failed to complete the Project in August of 1999. The Complainant testified that Noral Enterprises has had to store the finished cabinetry because the Project is unfinished. See Complainant’s Exhibit 6. The Complainant testified that Noral Enterprises has charged $45.00 per month since February (2000) for the storage of the finished cabinetry. Id.

18. The Complainant testified that the City of Scottsdale required a fire sprinkler system for the Project. The Complainant testified that the Respondent hired a company named Sentinel to design the Project’s sprinkler system. The Complainant testified that the Respondent constructed a panel area in the Project’s wall for the sprinkler system. See Complainant’s Exhibit H18 (picture). However, the Complainant testified that the Respondent failed to install a “sandpipe” in the Project’s wall. The Complainant testified that it is now too late to install the “sandpipe” in the Project’s wall because the “chase” area has been filled with concrete. The Complainant testified that another contractor will have to cut open the Project’s wall from the panel to the Project’s roof to install the “sandpipe”.

19. The Complainant testified that the Respondent failed to install electrical outlets and telephone jacks in the Project pursuant to the Project’s Plans. The Complainant testified, for example, that he desired floor electrical outlets in the Project’s workout room for the workout equipment. The Complainant testified that the Respondent failed to install the floor electrical outlets. The Complainant testified that he will now have to settle for wall electrical outlets in the Project’s workout room.

20. The Complainant testified that the Respondent placed the plumbing pipes and the drain in the wrong location in the Project’s bathroom. The Complainant testified that he contacted the Respondent about this problem prior to the pouring of the concrete in the Project’s bathroom. However, the Complainant testified that the Respondent poured the concrete despite the warnings. The Complainant testified that the Respondent had to “jack out” the concrete to properly relocate the plumbing pipes. See Complainant’s Exhibit H20 (picture). The Complainant testified that the bathroom was supposed to have a smooth concrete floor. However, the Complainant testified that the bathroom’s floor will now have to be tiled to cover up the Respondent’s corrective patch work.

21. The Complainant testified that the concrete ramp at the Project’s exterior west side door is not safe. See Complainant’s Exhibit H16 (picture). The Complainant testified that the ramp is supposed to run up to the door’s threshold. However, the Complainant testified that there is a dangerous differential in height between the door’s threshold and the ramp leading up to the door’s threshold. Id. The Complainant testified that there is also re-bar protruding dangerously from the door’s threshold. Id.

22. The Complainant testified that the Project’s roof has not been completed. The Complainant testified that water has leaked down into the Project’s lower level. The Complainant testified that the lower level ceilings and trusses show water stains. See Complainant’s Exhibits H15 & H19 (pictures).

23. The Complainant testified that the Project’s Plans include the installation of a gas water heater. The Complainant testified that the gas water heater is supposed to be located in a storage space under the Project’s staircase. See Complainant’s Exhibit H21 (picture). However, the Complainant testified that the Respondent failed to provide sufficient room for the water heater exhaust vent.

24. The Complainant testified that the Respondent had to remove OMNI block from the Project’s wall to install three pipes for the Project’s water heater. See Complainant’s Exhibit H21 (picture). However, the Complainant testified that the Respondent placed the three water heater pipes in the wall at a location where the air handler for the Project’s HVAC system was supposed to be located (pursuant to an agreement between the Respondent and the Complainant). The Complainant testified that the storage room’s wall will require a major revision to properly accommodate the HVAC air handler and the water heater’s piping.

25. The Complainant testified that the custom designed cabinetry in the Project’s workout room was designed to accommodate a kitchen sink pursuant to the Project’s Plans. However, the Complainant testified that the Respondent’s plumber placed the plumbing pipes in the wrong location in the workout room’s walls. The Complainant testified that the cabinetry will probably have to be modified again.

26. The Complainant testified that the Respondent installed special trusses between the Project’s first and second floor that were designed to allow HVAC duct work to pass through them. The Complainant testified that he desired these special trusses because he did not want the HVAC duct work to be visible under the ceiling. However, the Complainant testified that the Respondent installed one truss between the Project’s first and second floor that is “turned around”. The Complainant testified that this reversed truss blocks the chase for the HVAC duct work. The Complainant testified that he will have to spend additional funds to correct this problem.

27. The Complainant testified that the Project’s OMNI block walls are supposed to have “chases” to the roof for the installation of HVAC piping. However, the Complainant testified that some of the “chases” are improperly located because they pass through the doorway opening in the OMNI block wall for the Project’s second floor French door. See Complainant’s Exhibit H4 (picture). The Complainant testified that the piping (that is supposed to travel up the chase to the roof) will bisect the doorway opening in the Project’s second floor. The Complainant testified that this problem will have to be remedied by placing the air conditioning compressors on the Project’s roof instead of the on the ground. Unfortunately, the Complainant testified that the OMNI block chases to the roof cannot be completely filled in or insulated with Styrofoam without additional cost.

28. The Complainant testified that the Respondent agreed to have the OMNI block inspected. The Complainant testified that the OMNI block was never inspected.

29. The Complainant testified that the OMNI block technical information guidebook indicates that low voltage wiring should be placed in the groove of the OMNI block under the surface bond. The Complainant testified that J.R. Markson Security System Company (“J.R. Markson”) was supposed to install the pre-wiring for the Project’s security system. The Complainant testified that he wanted J.R. Markson to install the Project’s security system because J.R. Markson had installed the adjoining Cottage’s security system. However, the Complainant testified that the Respondent failed to enter into a contract with J.R. Markson.

30. The Complainant testified that many of the Project’s heating systems (e.g., water heater, fireplaces, gas ranges) are gas powered. However, the Complainant testified that the Respondent failed to properly plan for a gas supply pipe or distribution system in the Project. The Complainant testified that the Project’s walls and floors will have to be retrofitted to include the gas lines and distribution system.

31. The Complainant testified that the Project’s Plans show that the electric meter is supposed to be located in the alley. The Complainant testified that the placement of the electric meter in the alley is required by the Scottsdale City Code. The Complainant testified that the Respondent placed the “UFFER” or ground wire for the electric meter on the wrong side of the Project. See Complainant’s Exhibits H4 & H8 (pictures). The Complainant further testified that 14 feet of concrete will have to be cut to install conduit piping for the wires for the electric meter. Id.

32. The Complainant testified that the Respondent failed to provide adequate support for the Project’s second floor French door balconies. See Complainant’s Exhibits H3 & H4 (pictures). The Complainant testified that there are only two bolts underneath one French door balcony. See Complainant’s Exhibit H31 (picture). The Complainant testified that there are no bolts under the other French door balcony. See Complainant’s Exhibit H32 (picture).

33. The Complainant testified that the Respondent failed to complete the construction of a staircase at the Project. See Complainant’s Exhibit H2 (picture). The Complainant testified that the staircase is missing steps, footings and a landing. The Complainant further testified that the Respondent constructed a staircase wall that is about 7 courses too high. Id. The Complainant testified that he warned the Respondent’s mason subcontractor that the staircase wall was too high. However, the Complainant testified that the mason built the staircase wall despite his warnings. The Complainant testified that the staircase wall is located where the landing is supposed to be located. See Complainant’s Exhibits H1 & H2 (pictures).

34. The Complainant testified that the Project is supposed to have a bathroom for the outdoor pool. The Complainant testified that furring on the pool bathroom must be removed to accommodate the toilet and custom designed cabinetry.

35. The Complainant testified that the Respondent failed to construct patios and walls at the Project that required permits from the City of Scottsdale. The Complainant testified that he received letters from the City of Scottsdale stating that the permits were scheduled to expire. The Complainant testified that he forwarded the letters to the Respondent. However, the Complainant testified that the Respondent ignored the letters from the City of Scottsdale. The Complainant testified that he had to request extensions for the permits.

36. The Complainant testified that the Project’s Plans show that the Project is supposed to have a central vacuum system. However, the Complainant testified that the Respondent failed to install the central vacuum system. The Complainant testified that it is not feasible now to install a central vacuum system.

37. The Complainant testified that the Respondent never installed the second floor trusses and roof. The Complainant testified that plywood on the second floor has been damaged by water. See Complainant’s Exhibits H27, H28, H29 & H36 (pictures). The Complainant testified that the second floor trusses were delivered to the Project in August of 1999. The Complainant testified that the trusses were stacked outside of the Project. See Complainant’s Exhibit H13 & H14 (pictures). The Complainant testified that one truss was damaged while it was exposed to the elements. See Complainant’s Exhibit H14. The Complainant testified that he hired two workers to move the trusses indoors. See Complainant’s Exhibit H13.

38. The Complainant testified that some of the Project’s second floor windows were supposed to be sliding windows to allow more walking room on the Project’s porch. See Complainant’s Exhibit H26. However, the Complainant testified that the Respondent installed “crank out” windows that could be dangerous because an individual on the porch could walk into the open windows.

39. The Complainant testified that the Cottage had a new lift pump for its plumbing. The Complainant testified that the Respondent inspected the lift pump prior to signing the Contractor Agreement. The Complainant testified that the Respondent told him that the lift pump was inadequate for the Project after the Contractor Agreement had been signed. The Complainant testified that the Respondent should have told him prior to signing the Contractor Agreement that the existing lift pump was inadequate.

40. The Complainant testified that Mr. Darren Heaney, the Respondent’s mason subcontractor, is still owed $4,500.00. The Complainant testified that Mr. Heaney also filed a complaint with the Registrar of Contractors against the Respondent.

41. The Complainant testified that the Respondent failed to install bumper posts, hose bibs, electrical outlets for outdoor lighting and drain holes for the parapets at the Project.

42. The Complainant testified that the Revised Contract states that the Respondent is supposed to provide lien waivers prior to receiving payment. See Complainant’s Exhibit 3 (Revised Contract). The Complainant testified that he has not received the lien waivers.

43. The Complainant testified that the Respondent is contractually responsible for the security at the Project. The Complainant testified that there is no fencing around the Project or the pool. The Complainant testified that the Project’s doors and garage doors are “wide open”. The Complainant testified that the Respondent’s insufficient security and delays have allowed thieves to steal a ladder, a shop vacuum and a paint sprayer from the Project. The Complainant testified that he was the owner of these items.

44. The Complainant testified that the licensed architect, Edward Chavez, also inspected the Project on or about September 28, 2000. See Complainant’s Exhibit 7. Mr. Chavez submitted a list of 25 items requiring corrective work at the Project. Id. These listed items confirm the testimony and concerns of the Complainant. Id. For example, Mr. Chavez wrote, “Extreme irregularity of the OMNI Block; have engineer review.” Id. Mr. Chavez wrote that the “estimated amount of work to date is approximately $60,000.00” Id.

45. The Complainant testified that he contacted 4 licensed general contractors to determine if they were willing to complete the Project. The Complainant testified that contractor Stephen Mott estimated that the Respondent had provided $66,394.10 of work at the Project. See Complainant’s Exhibit 8. The Complainant testified that Contractor C. Mark Alexander estimated that the Respondent had provided $58,550.00 of work at the Project. See Complainant’s Exhibit 9.

46. The Complainant testified that Mr. Mott provided a quote of $56,503.69 to repair the Respondent’s work at the Project. See Complainant’s Exhibit 10. The Complainant testified that the other general contractors declined to complete the Project because the Project had too many problems.

47. The Complainant requested that the Respondent’s Class B License Number 095226 be revoked to protect the public.

48. Mr. Dan Lafond is an Inspector for the Registrar of Contractors. Inspector Lafond inspected the Project on four separate occasions. Inspector Lafond testified that he inspected the Project on October 1, 2000. This inspection occurred one day prior to the initial hearing date in this matter. Inspector Lafond testified that his most recent inspection of the Project occurred on November 28, 2000. Inspector Lafond testified that the Respondent performed no work at the Project from October 1, 2000 to November 28, 2000. Inspector Lafond testified that the Respondent had abandoned the Project.

49. Inspector Lafond testified that at least 15 floor pieces of plywood require replacement on the Project’s second floor. Inspector Lafond testified that the second floor plywood floor is probably stable enough to support construction workers. However, Inspector Lafond cautioned that the floor pieces of plywood must be replaced prior to the installation of a final flooring. See Complainant’s Exhibits H27, H28, H29 & H36.

50. Inspector Lafond testified that the surface of the OMNI block system installed at the Project is not uniform in appearance. See Complainant’s Exhibits H5, H6, H7, H9, H11, H12, H17, H19 & H23 (pictures). Inspector Lafond testified that there appears to be numerous irregularities in the exterior surface of the Project’s OMNI block. Id. Inspector Lafond further testified that “cementious material” or a “surface bond” must be applied to the interior and exterior of the OMNI block for structural integrity. Inspector Lafond testified that currently the ONMI block system is “structurally unsound.”

51. Inspector Lafond testified that he did not issue an “item by item” Corrective Work Order “CWO” in this matter because there were voluminous problems with the Project. Inspector Lafond testified that he would have had to create an entire construction schedule in order to complete an “item by item” CWO. Inspector Lafond testified that he has never inspected a jobsite that included so many items that required completion or corrective work.

52. Inspector Lafond testified about some of the more egregious examples of poor workmanship performed by the Respondent at the Project. Inspector Lafond testified that the Project has sagging “liddles” over the garage doors. Inspector Lafond testified that the Project does not have the correct ceiling height. Inspector Lafond testified that there is one truss between the Project’s first and second floor that is “turned around”. Inspector Lafond testified that this reverse truss blocks the chase for the duct work. Inspector Lafond testified that the trusses designed for the Project’s roof are insufficient in length. Inspector Lafond testified that concrete in the Project had to be “jacked out” to relocate plumbing lines. Inspector Lafond testified that the chase for the Project’s fire sprinkler system is blocked. Inspector Lafond testified that these problems represent poor workmanship by the Respondent.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(1). The evidence shows that the Respondent abandoned the Project without legal excuse.

3. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(2). The evidence shows that the Respondent repeatedly and materially departed from the Project’s Plans without the Complainant’s consent.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108. The evidence shows that the Respondent has failed to perform in a professional and workmanlike manner in constructing the Project.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7). The evidence shows that the Respondent’s wrongful acts have caused substantial financial and emotional injury to the Complainant.

6. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(11). The evidence shows that the Respondent failed to properly pay subcontractors for materials and services in an amount exceeding $750.00.

7. The undersigned Administrative Law Judge concludes that grounds exist to revoke the Respondent’s Class B license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s Class B License Number 095226 be revoked.

Done this day, December 11, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of December, 2000, to:

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

By ___________________________

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