ALJDEC decisions subject to certification as final

07F-H0223-ROC · Registrar of Contractors · 2007-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 12 September 2007 APPEARANCES: Complainant: Cathrine Lerma (video teleconference from Kingman, Arizona). Respondent: None. Others: Bill Redman, Inspector, Arizona Registrar of Contractors (video teleconference from Kingman, Arizona). 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 0815, 12 September 2007 at the Office of Administrative Hearings in Phoenix, Arizona, pursuant to a duly promulgated Notice of Hearing issued to the parties on 3 August 2007, for the purpose of hearing Complainant’s allegations regarding Respondent. 2. On 4 May 2006, Complainant contracted with Respondent for the construction of a fountain/water feature to be built in the backyard of Complainant’s new home. Respondent had been recommended to Complainant by the general contractor who built Complainant’s new home, Carolyn Baker of Avalon Custom Homes. The contract price for the project was $18,536.00. Complainant paid Respondent a $1,000.00 deposit upon execution of the contract, and ultimately paid Respondent a total of $16,200.00 on the contract. 3. Respondent proceeded with the project until he was approximately 50% finished, when Complainant observed Respondent “struggling” with the project, as if he didn’t have the means or knowledge on how to proceed. After a few weeks of little progress on the project, Complainant invited Ms. Baker to observe the situation. Ms. Baker termed it “a mess”, and chided Respondent about getting organized, redoing some of the work, and finishing the project as promised. In early November 2006, Respondent abandoned work on the project, with it being approximately 60% complete, and moved to Louisana. 4. Mr. Redman conducted a jobsite inspection of the project and testified that in addition to the Respondent abandoning the project and leaving it incomplete, the workmanship on those portions of the project that were completed was inadequate and below standard. In particular, Mr. Redman noted that the surface of the concrete slab poured by Respondent between the back patio and the edge of the project was so steep that it couldn’t be walked on comfortably. As a result, Mr. Redman issued Respondent a Corrective Work Order dated 18 December 2006. No corrective work was ever undertaken. 5. Respondent failed to appear and, consequently, no evidence was presented in support of Respondent’s case. Respondent’s Class B-05 license is currently revoked.

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 and 23.

RECOMMENDED DECISION It is recommended that the ROC revoke Respondent’s Class B-04 license. 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, September 27, 2007

______________________________________ Maurice McWhirter 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 ___________________________ -----------------------

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