ALJDEC decisions subject to certification as final

07F-2483-ROC · Registrar of Contractors · 2008-06-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2008 APPEARANCES: Complainant: Troy Burleson, corporate officer, appeared and was represented by counsel, John T. Gilbert. Respondent: Respondent failed to appear either through authorized representative or counsel. Registrar of Contractors: Inspector Randy Cason appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record[1] in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated April 25, 2008. 2. Complainant Evolution Homes, Inc. (“Complainant”) is a corporation doing business in Arizona. Troy Burleson (“Burleson”), corporate officer, appeared on behalf of Complainant. 3. Respondent Prestige Pools and Spas, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 198433, Class B-05 (General Swimming Pool) issued by the Registrar of Contractors (“ROC”) September 17, 2004. Christopher Jo McDonald is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended August 1 - 4, 2006 (lack of qualifying party), December 27, 2007 to January 11, 2008 (lack of bond) and May 5, 2008 (lack of bond). 4. Complainant filed a complaint with the ROC on April 30, 2007 wherein it alleged, inter alia, “abandonment of contract, won’t return calls.” 5. On July 31, 2007, Registrar of Contractor’s Inspector Randy Cason (“Cason”) conducted a jobsite inspection and issued a Corrective Work Order on August 15, 2007 wherein he required corrective work to be performed on complaint items 4 (water leveler at spa not installed), 7 (3-4 plumbing and electrical trim pieces stick out past pebble tech finish), 8 (pool tile not level), 13 (water fall not per plans (real rock was not used to build water fall feature) and addendum (cover plate over breaker space not installed is missing in pools sub panel).[2] 6. On September 21, 2007, Complainant filed a request for hearing wherein it asserted that complaint item 4 had been corrected but in doing so Respondent had “caused some kind of leak at the base of the water fall on both sides…,” item 7 had been partially fixed but “one of the fixes is not acceptable…,” item 8 had been repaired and, item 13 still required corrective work. 7. On January 17, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. 07-2483 charging Respondent with possible violations of A.R.S. §32-1154A 1, 2, 7, 23 and 3 (namely, A.A.C. R4-9-108, the workmanship rule). 8. Respondent filed an answer on January 30, 2008 wherein it asserted general and specific denials to all allegations. 9. At the hearing, Burleson appeared and testified on behalf of Complainant and submitted Exhibit 1 which was marked, admitted and considered. Burleson further advised prior to the presentation of evidence that all complaint items had been corrected except for 13. 10. Respondent failed to appear either through authorized representative or counsel. 11. Inspector Cason testified on behalf of the Registrar of Contractors and described his observations and conclusions on his initial July 31, 2007 jobsite inspection and May 29, 2008 pre-hearing jobsite inspection. 12. Inspector Cason related that at the initial jobsite inspection he determined that the contract between the parties (Exhibit 1) and applicable plans required Respondent to install a natural rock waterfall but that a fabricated waterfall was built in lieu thereof. Cason confirmed that as of his May 29, 2008 pre-hearing jobsite inspection no corrective work on the waterfall had been performed by Respondent. 13. Burleson testified that, upon advising Respondent’s representative, Chris McDonald, that Respondent had installed the wrong rock for the waterfall, McDonald was totally defiant, asserted that Burleson had agreed to the change and refused to correct it. 14. Burleson further testified that he is the owner of the premises and served as the general contractor on the project but does not reside there.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 07-2483 charged Respondent with possible violations of A.R.S. §32- 1154A 1, 2, 7, 23 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

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2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

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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 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 violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (1) and (2) when it abandoned the project and failed to construct the subject rock waterfall with natural rock, instead of fabricated rock, as required by the plans and parties’ contract. 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) by failing to comply with the August 15, 2007 Corrective Work Order issued by Inspector Cason as it pertains to item 13, the rock waterfall. 6. This tribunal further determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108 by failing to construct the subject rock waterfall in a workmanlike manner. 7. This tribunal also determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent’s actions with regard to its work on the subject rock waterfall were wrongful and resulted in substantial injury to Complainant. Therefore, violations of A.R.S. §32-1154A (7) have been proven as charged in the issued Citation in Case No. 07-2483. 8. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith during and subsequent to performing its work on the subject rock waterfall as well as in response to the Registrar of Contractors’ Corrective Work Order. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the pre-hearing jobsite inspection and the hearing which shall serve as factors in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class B-05 license of Respondent be suspended until such time as Respondent submits written evidence to the Registrar of Contractors that it has remitted to Complainant sufficient funds to enable Complainant to retain the services of another licensed contractor to perform remedial work on the project’s rock waterfall to convert it to natural rock pursuant to the applicable plans and contract. IT IS FURTHER RECOMMENDED that if Respondent provides to the Registrar of Contractors the written proof above-required on or before the effective date of the Registrar’s Order, the above license suspension shall not take place. IT IS FURTHER RECOMMENDED that, in addition to and notwithstanding the above-referenced suspension, Respondent’s Class B-05 license be placed on disciplinary probation for a period of sixty (60) days from the end of the referenced suspension. IT IS FURTHER RECOMMENDED that, in addition to the above-provided penalties, Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). IT IS FURTHER RECOMMENDED that, in the event Respondent fails to pay the entire amount of the above-referenced civil penalty on or before thirty (30) days following the effective date of the Order entered in this matter, Respondent’s Class B-05 contractor’s license No. 198433 be automatically revoked and that no future license be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding civil penalty is tendered.[3] Done this day, June 13, 2008.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ________________________ ----------------------- [1] The record consists of those documents found within the Registrar of Contractors’ file, the content of which the Administrative Law Judge took Administrative notice, the exhibits offered by the parties and admitted into evidence and the digital record of the proceedings under A.A.C. R2-19- 121. [2] Inspector Cason also determined that Respondent had corrected items 1, 2, 3, 5, 6, 9, 10, 14, 15, 16 and 17 prior to the jobsite inspection and Complainant had withdrawn items 11 and 12 thereby requiring no remedial action. [3] 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.

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