ALJDEC decisions subject to certification as final

07F-H0215-ROC · Registrar of Contractors · 2007-12-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11 and December 7, 2007 APPEARANCES: Complainant: James Russell appeared at both hearings, pro per. Respondent: Jason Deru, corporate officer and qualifying party, appeared at both hearings, pro per. Registrar of Contractors: Inspector William Redman appeared on behalf of the Registrar of Contractors at the September 11, 2007 hearing. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter first convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 3, 2007. The parties did not conclude the presentation of evidence in the time allotted and the matter was set for further hearing on December 7, 2007 pursuant to this tribunal’s Order Re: Further Hearing Date dated November 6, 22007.[1] 2. Complainant James Russell (“Complainant”) is the owner of a residence located at 9477 Broken Saddle, Kingman, Arizona (“premises/project”). 3. Respondent Taz Concrete, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 097089, Class C-09 (Residential Concrete) issued by the Registrar of Contractors (“ROC”) April 20, 1993. Bret J. Deru (“Deru”) 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 September 21, 2003 to March 18, 2004 for lack of bond. 4. Complainant filed a complaint with the ROC on November 13, 2006 wherein he alleged “concrete in drain main for broken plumbing line.”[2] 5. Registrar of Contractors Inspector William Redman (“Redman”) conducted a jobsite inspection on November 27, 2006 and issued a Corrective Work Order on December 12, 2006. Therein, Inspector Redman related that, pursuant to an “agreement reached at the jobsite, [Respondent] will cut the concrete floor for access to the plumbing. The respondent shall have the pipe removed by a licensed plumbing contractor. If there is concrete in the pipe the respondent shall pay for all repairs needed; including replacement of the tile and all cleanup.” 6. Complainant filed a request for hearing on December 29, 2006 wherein he asserted that the “repairs not complete.” 7. On April 17, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. H07-0215 charging Respondent with possible violations of A.R.S. §32-1154A 7, 23 and 3 (namely, A.A.C. R4-9-108, the workmanship rule). 8. Respondent filed a correspondence with the Registrar of Contractors on May 1, 2007 wherein it alleged, inter alia, that it tore out and re-poured the concrete, cleaned walls, floors and vacuumed and requested a hearing. 9. At the hearing, Complainant testified and submitted Exhibit R-1 which was marked, admitted and considered.[3] 10. Deru testified on behalf of Respondent at the December 7, 2007 hearing and submitted Exhibits R-1 and R-6-1 which were marked, admitted and considered. 11. Inspector Redman testified on behalf of the Registrar of Contractors and described his observations and conclusions regarding his November 27, 2006 jobsite inspection. 12. From the evidence elicited at the hearing, the following salient facts are important to note: a. At the November 27, 2006 jobsite inspection, Inspector Redman determined that there was concrete in a pipe located on the premises although the source of such concrete was unknown. b. Per a jobsite agreement, Respondent agreed to cut the concrete floor for access to the plumbing, have the pipe removed by a licensed plumbing contractor and, if concrete was found in the subject pipe, pay for all repairs needed including replacement of the tile and all cleanup. (Exhibit R-1) c. A factual dispute exists between the parties regarding whether Respondent complied with the terms of the jobsite agreement set forth in the Corrective Work Order. Complainant asserted that he completed the tile work himself and that certain cleanup had not been completed. Deru credibly testified that all jobsite agreement corrective work had been performed and paid for and submitted a September 14, 2007 letter from Darin Craig of Craig Plumbing (Exhibit R-6-1) to support that contention.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. H07-0215 charged Respondent with possible violations of A.R.S. §32- 1154A 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:

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

…

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. This tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) by failing to substantially comply with the jobsite agreement set forth in the December 12, 2006 Corrective Work Order. Although a factual dispute exists between the parties regarding Respondent’s compliance with the subject jobsite agreement and Complainant asserts that Respondent did not so comply, it is determined and concluded that the evidence submitted by Complainant was of insufficient to carry the burden of proof. 5. This tribunal further determines and concludes that Complainant failed to establish 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, the workmanship rule, as they pertain to any work performed by Respondent on the premises. 6. It is also determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7). Based on the foregoing, it cannot be said that Respondent committed a wrongful or fraudulent act which caused Complainant substantial injury. Therefore, no violation of A.R.S. §32-1154A (7) has been proven. …

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. H07-0215 be dismissed.[4] Done this day, December 26, 2007.

_______________________ Brian E. Smith Administrative Law Judge

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

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

By ________________________ ----------------------- [1] An issue also arose at the initial hearing regarding a subpoena duces tecum which Complainant wanted to have issued for a Daniel Craig. At that time, Complainant asserted that he had submitted the subpoena for signature. However, this tribunal had no record of such request. As a result, the undersigned agreed to continue the hearing to provide Complainant time to submit the subject subpoena which was done immediately after the hearing was adjourned. The executed subpoena was thereafter returned to Complainant via facsimile. [2] The complaint did not indicate the date of a contract between the parties, the amount thereof and/or when work was last performed by Respondent nor did he present any testimony or other evidence regarding such facts at the hearing. [3] Complainant appeared via videoconference at the September 11, 2007 hearing but presented no testimony at that time. Complainant failed to personally appear at the Kingman ROC office for the December 7, 2007 further hearing. Shortly after the scheduled 8:15 start time, this tribunal was advised by Inspector Redman that Complainant had telephoned the Kingman ROC office to advise that he wanted to appear telephonically from Lake Havasu City. Notwithstanding the untimeliness of such oral motion for telephonic appearance and the lack of any notice thereof provided to the Office of Administrative Hearings prior to the scheduled hearing time, this tribunal granted Complainant’s oral motion and permitted him to appear and testify by telephone. [4] 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