ALJDEC decisions subject to certification as final

07F-1975-ROC · Registrar of Contractors · 2007-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2007 APPEARANCES: The Complainant represented himself. The Respondent represented himself. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The facts of this case are relatively straightforward. 2. The Respondent, holder of a Class C-21R landscaping license had previously done some landscaping work for the Complainant. 3. The C-21R license allows the holder to prepare and alter land for horticulture and arboriculture, install irrigation, carpentry is limited to decorative fences, screens, planter boxes and plant tubs.

4. In the latter part of 2006, the Complainant hired the Respondent to perform additional work at his home in Phoenix, Arizona. The parties did not execute a written contract. 5. According to the Complainant, he was unaware the Respondent was limited to a landscaping license, in part because of the Respondent’s business name “Ultimate Construction”. 6. The Complainant testified he entered an oral contract with the Respondent whereby the Respondent would do landscaping, install electrical wiring for the kitchen, move an interior wall, replace doors and windows in the home, install a new roof, front door and patio door. 7. The Complainant submitted invoices reflecting charges by and payment to the Respondent in excess of $18,000.00. The majority of the work described in the invoices is unrelated to landscaping. 8. The Complainant testified that after installation by the Respondent, the roof leaked and the kitchen lights flickered. The Complainant contacted the Respondent but the Respondent did not attempt to correct the work. 9. The Complainant filed the Complaint with the Registrar of Contractors (ROC) on March 2, 2007. 10. ROC Inspector Warren Duncan (Duncan) performed a jobsite inspection on March 8, 2007 and issued a Corrective Work Order (CWO) on March 14, 2007. 11. The CWO required the Respondent to have licensed contractors perform corrective work on: (A) not to code electrical work[1], (B) drywall water damage in the kitchen and dining area, (C) protruding nail damage to patio ceiling and house roof overhangs, (D) excessive drywall gaps, (D) poor soldering of kitchen pipes, (E) non code water heater installation, (F) improper front door installation and (G) failure to obtain required permits. 12. The Respondent testified he did not perform any work as a contractor but rather as an employee of the Complainant. The invoices in this case clearly show the Respondent was not an employee. They show billing by and payment to the Respondent in excess of $18,000.00. 13. The Respondent and his witnesses also testified that they were initially doing landscaping when the Complainant acting as supervisor had them perform non landscaping contracting work in the home. Again the invoices and evidence show the Complainant paid the Respondent mostly for non landscaping work. The Respondent and not the Complainant was responsible for paying and paid the Respondent’s employees. 14. The Respondent testified he made no attempt to perform corrective work because the Complainant was complaining about costs and the Respondent from his own funds had to pay a person working on drywall. This testimony is rather telling. If the work was being done by the Complainant’s employees as claimed, the Respondent would have had no obligation to pay them. Conclusions of Law The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A)(2) departure or disregard of plans and specifications; (A)(3), (no rule is cited in the Citation and Complaint); (A)(7), a wrongful act with substantial injury; (A)(15), acting as a contractor under a name other than as listed on the license; (A)(17), knowingly contracting beyond the scope of the license; (23), failure to take appropriate corrective action; (A)(13)/A.R.S. §32-1124(B) failure to place the acronym “ROC” before the license number. 1. The Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence Culpepper v. State, 187 Ariz. 431 (1996 App.)[2], A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it 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). 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). 2. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. (A)(2) is dismissed because the Complainant did not present evidence on the issue. 5. (A)(3) is dismissed because the Citation and Complaint does not specify what rule was violated.[3] 6. (A)(15) is dismissed for lack of any specific evidence on the issue. 7. (A)(13) is dismissed for lack of any specific evidence on the issue.[4] 8. Based on the evidence, it is clear the Complainant has proven violation of (A)(7), the wrongful act by the Respondent is performing work which the Respondent was neither licensed to perform or qualified to perform. The damage is the amount of money paid by the Complainant for the unlicensed, unqualified, and based on the evidence, incompetent work of the Respondent. 9. The Respondent is also in violation of (A)(17). The evidence is clear that the Respondent was working and being paid as a contractor and not as an employee. The evidence also shows the Respondent was working far beyond the scope of his license by performing specialty work such as electrical and plumbing as well as general construction work such as roofing, drywall, door and window installation, and acting as a general contractor for the purpose of coordinating the work on the project. A.R.S. §32-1101(A)(3), in pertinent part, defines contractor as:

“’Contractor’ is synonymous with the term ‘builder’ and means a person, …that, for compensation, undertakes to or offers to undertake, purports to have the capacity to undertake to, or submits a bid to, or does by himself or by or through others, or directly or indirectly supervises others to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building…” A.R.S. §32-1101(B), in pertinent part, defines contractor as:

‘’Contractor’ includes subcontractors…and consultants representing themselves as having the ability to supervise or manage a construction project for the benefit of the property owner including the hiring of and firing of specialty contractors, the scheduling of work on the project and the selection and purchasing of construction material.”

10. The violation of (A)(23) is also proven . The Respondent took no action as required by Duncan or otherwise attempted to remedy the multiple problems created by the Respondent. 11. The proven violations are egregious because of the clear potential for harm to the public when a contractor who is unqualified to engage in certain work (especially work which requires permits and inspection such as electrical), and does so under the artificial and knowingly false claim that he was only acting as an employee. The Respondent presented no competent evidence in mitigation There is only one reasonable recommendation which can be made in this case. Recommended Order It is recommended that on the effective date of the Order issued in this matter[5] the Respondent’s Class C-21R License No. 054952 shall be revoked.

Done this day, November 16, 2007

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Open electrical boxes, exposed copper wire, improperly grounded wiring, etc. [2] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [3] The ALJ is aware that the normal citation is to A.A.C. R4-9-108 workmanship. However, it is not the ALJ’s awareness which matters. Due process requires the Respondent to be made aware of what he is to defend against. [4] The evidence may well be contained in documentation in the hearing file or contained in documents admitted for some other reason. However, it is not the proper function of the ALJ to peruse file materials looking for evidence which may prove or disprove a violation for the benefit of any party. [5] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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