ALJDEC decisions subject to certification as final

07F-L0273-ROC · Registrar of Contractors · 2007-10-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2007 APPEARANCES: Complainant: Henry and Donna Mossbarger appeared, pro per. Respondent: Respondent failed to appear either by authorized representative or counsel. Registrar of Contractors: Inspector Cliff Corlett 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 in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractor’s Notice of Hearing dated August 15, 2007.

2. Complainants Henry and Donna Mossbarger (“Complainants”) are the owners of a residence located at 2345 Mandalay Dr., Lake Havasu City, Arizona (“premises/project”). 3. Respondent Coast to Coast Carports, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 201748, Class C-03 (Residential Awnings and Canopies) issued by the Registrar of Contractors (ROC”) on November 21, 2004. Thomas Lee Johnson is an employee and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended August 20 through November 17, 2006 for lack of bond (Recovery Fund claim). 4. Complainants filed a complaint with the ROC on December 6, 2006 wherein they alleged, inter alia, that “Lake Havasu City zoning Code violated by shade structure erected in location of side yard set back area and also requires a building permit due to type and size.” 5. Inspector Cliff Corlett (“Corlett”) conducted a jobsite inspection on December 14, 2006 and issued a Corrective Work Order on December 14, 2006 wherein he determined, inter alia, that the subject “carport is constructed up to the property line [and Respondent] and/or his sales person (A-1 Auto Sales) should have known the codes and informed the cuctomer [sic] that a structure the size he wanted could not be constructed at that location.” Inspector Corlett further related that “A.R.S. 32-1154 (A) .2 states that it is a violation for a contractor to comence [sic] a building project that requires a permit without that permit being in place, regardless of who was to supply the permit.” Corlett directed that “Respondent should properly resolve this matter with the complainant which would appear to be to remove the structure and refund the customers money.” 6. On May 7, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. L07-0273 charging Respondent with possible violations of A.R.S. Sec. 32-1154A 2, 7, 23, 3 (namely, A.A.C. R4-9-108, the workmanship rule) and 13 (namely, A.R.S. Sec. 32-1124(B)). 7. Respondent filed an answer on May 17, 2007 which provided that it “issued a take-down order of this building on 5-14-07 [which] will be done on or before 5-29-07.” 8. At the hearing, Complainant Henry Mossbarger (“Mossbarger”) testified and offered Exhibits C1, C-2, C-4 through C-8 and C-13 through C- which were marked, admitted and considered. 9. Respondent failed to appear either through authorized representative or counsel. 10. Inspector Corlett testified on behalf of the Registrar of Contractors and described his observations and conclusions on his initial jobsite inspection on December 14, 2006 and pre-hearing jobsite inspection on September 17, 2007. 11. Based on his investigation, Inspector Corlett opined that the subject metal shade cover erected on the premises by Respondent was constructed without a permit in violation of A.R.S. 32-1154A (2) and within the five foot (5’) minimum side yard set back in violation of applicable Lake Havasu City code. 12. Complainants paid Respondent a total of $5,083.00 for the subject metal shade cover which was erected without the necessary Lake Havasu City permit and within the five foot (5’) minimum side yard setback.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. §32-1154A 2, 7, 23 and 3 (namely R4-9-108, the workmanship rule). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

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 code.

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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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13. Failure in any material respect to comply with the provisions of this chapter. …

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, Complainants 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 Complainants established by a preponderance of credible, probative and relevant evidence that Respondent constructed the subject metal shade cover without the required Lake Havasu City permit and within the five foot (5’) minimum side set back both in violation of A.R.S. § 32-1154A (2). 5. This tribunal further determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent failed to properly construct the subject metal shade cover in violation of A.R.S. § 32-1154A (23) and (3) (namely, A.A.C. R4-9-108, the workmanship rule). 6. It is further determined and concluded that the violations set forth in Conclusions of Law 4 and 5 above were wrongful and resulted in substantial injury to Complainants. Therefore, violations of A.R.S. §32- 1154A (7) have been proven. 7. This tribunal further determines and concludes that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (13). 8. It is also determined and concluded 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 metal shade cover. Such absence of good faith is further demonstrated by Respondent’s failure to timely comply with the Registrar’s Corrective Work Order and failure to appear at 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 fifteen (15) days from the effective date of the Registrar’s Order entered in this matter, the Class C-03 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has removed the subject metal shade cover from Complainants’ premises and refunded to Complainants the $5,083.00 paid Respondent for construction of the subject structure. IT IS FURTHER RECOMMENDED that, if Respondent timely removes the subject metal shade cover and refunds the $5,083.00 to Complainants or if Respondent is denied access to remove said structure then, in that event, no license suspension shall take place.[1] Done this day, October 9, 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] 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