ALJDEC

00F-A0322-ROC · Registrar of Contractors · 2001-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2001 (Prescott, Arizona)

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Philip Buchanan brings this action regarding Respondent’s construction of the concrete floor in Complainant’s storage area. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Having considered Complainant’s evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of revocation. FINDINGS OF FACT 1. Respondent James Russell Haley dba Haley Concrete is the holder of a class C-09 specialty license (No. 105514) issued by the ROC. That license authorizes Respondent to perform installation and repair of concrete in residential structures. (See, Arizona Administrative Code (A.A.C.) R4-9-103.) 2. In 1998, Respondent was the sub-contractor who built the floor in a storage building on Complainant’s property in Mayer, Arizona. The entire building was not completed until 1999. Upon completion, Complainant washed the building with a hose and noticed that water was pooling on the floor, especially in one corner, which pooled up to about two inches deep. He also discovered that when it rains, water pools on the floor, instead of draining away. This is of major importance because the building is designed as a storage building. Goods stored sitting on the floor of the building get damaged by the water. 3. In February 2000, Complainant filed a complaint with the ROC. ROC Inspector Cliff Frandsen went to the property to inspect the site, but could not measure the floor because it was filled with goods being stored by Complainant. Respondent did not attend the inspection. A Corrective Work Order (CWO) was issued on March 7, 2000, which stated that Respondent was to “take the necessary and proper action to provide the concrete floor in the storage room to be within the Minimum Workmanship Standards for Licensed Contractors in the State of Arizona, January 2000 edition.” The CWO then set forth the measurements necessary to comply with the standards. Respondent gave absolutely no response to the CWO. 4. At the hearing, Complainant provided Exhibits 1-12, which are photographs showing how he measured the floor and found it to be sloped and not level by approximately 2 inches. He testified that water pools on the floor when it rains. The uncontested evidence shows that water pools on the floor in violation of minimum workmanship standards. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met that burden. 2. Respondent has violated A.R.S. § 32-1154(A)(7), (23), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, by failing to build the floor in a workmanlike manner and failing to correct defects as ordered by the ROC. 3. A review of current ROC records shows that Respondent’s license was suspended on March 10, 2000, for failure to maintain a surety bond. Pursuant to A.R.S. § 32-1154(C), the suspension of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license. 4. Respondent has substantially harmed Complainant and refused to correct the work. Such disregard for obligations to customers should not be tolerated. Furthermore, Respondent has not participated in the complaint process at all, other than to prevent a default judgment. Such disregard for regulatory authority also should not be tolerated. Under the circumstances of this case, this ALJ concludes that the appropriate penalty is revocation of the license. RECOMMENDED ORDER IT IS RECOMMENDED that Class C-09 license 105514 held by James Russell Haley dba Haley Concrete be revoked.

Done this 5th day of February 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of February 2001, to:

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

By ___________________________ -----------------------

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