ALJDEC decisions subject to certification as final

07F-0243-ROC · Registrar of Contractors · 2007-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 8 February 2007 APPEARANCES: Complainant: Tom Coffin, Owner of Acme Building and Wrecking Co. Respondent: None. Others: None ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A).

FINDINGS OF FACT 1. The above-entitled case was called to hearing at 0900, 8 February 2007 at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice of Hearing issued to the parties on 5 January 2007, for the purpose of hearing Complainant’s allegations regarding Respondent. 2. Complainant testified that Respondent failed to properly follow the plans and specifications for installing copper plumbing at a house Complainant was building at 19007 East Tonto Verde Drive in Rio Verde, Arizona (the “House”). Complainant entered into a contract with Respondent in May 2006 that initially called for Respondent to provide concrete and framing services, but ultimately was expanded to provide for electrical, plumbing and HVAC work. Complainant paid Respondent $15,000.00 initially, to pay for concrete and grading materials. Later, Complainant paid Respondent $10,000.00 to cover the cost of framing materials. 3. As work progressed, Respondent failed to install copper plumbing throughout the House, electrical runs for a kitchen island, and other plumbing pipes according to House plans and specifications. In addition, the work itself was considerably delayed. Eventually, Complainant had to engage other contractors to correct and complete the plumbing and electrical work, and to complete the framing work which Respondent never began. The House is now substantially complete, and Complainant maintained that he had no other problems with successful completion of the House once Respondent was no longer involved with the project. 4. Complainant calculates his damages as a result of Respondent’s abandonment of the contract and failure to complete the work on the House to be $10,000.00, the price Respondent paid for the framing materials. 5. Respondent failed to appear and, consequently, no evidence was presented in support of Respondent’s case. Respondent’s license #216827 has been under suspension since 7 January 2007 for failure to provide proof of adequate bond to the ROC.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant presented a prima facie case at the hearing and, in the face of Respondent’s default, sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated certain provisions of ARS §32-1154(A), specifically subsections 1 & 2.

RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing on the effective date of the ROC’s Order, that Respondent’s Class KB-02 license be temporarily and actively suspended until the ROC receives proof adequate to the ROC that Respondent has paid Complainant restitution in the amount of $10,000.00. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification. Done this day, February 8, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

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

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