ALJDEC decisions subject to certification as final

08F-0218-ROC · Registrar of Contractors · 2008-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2008 APPEARANCES: The Complainant appeared in his own behalf. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing as scheduled. The Respondent failed to appear[1]. The Complainant and Registrar of Contractors (ROC) Inspector Warren Duncan (Duncan) testified. Based on the competent evidence, the following findings are submitted. Findings of Fact 1. In August 2006, the Complainant purchased a two story townhouse constructed by the Respondent. 2. Over the following 11 months, the Complainant compiled a list of numerous perceived defects and requested that the Respondent correct the defects the Complainant believed needed correction. 3. The Respondent failed to address the various problems identified by the Complainant and on July 27, 2008, the Complainant filed his Complaint with the ROC. 4. On September 19, 2007, ROC Inspector Duncan performed a jobsite inspection and On October 1, 2007 Duncan issued a Corrective Work Order (CWO). 5. The CWO addressed approximately 104 items which had been submitted by the Complainant. 6. On September 10, 2008, Duncan performed a prehearing inspection. Of the more than 100 items referenced in the original CWO, 13 remain at issue as of the hearing. 7. The items which remain to be corrected are: A. A small gouge in the downstairs bath; B. Small gaps at the joint base molding at the west wall in the laundry area; C. A crack in the shade of the light sconce at the patio door; D. Paint overspray on exterior of master bedroom windows; E. Gaps between stair carpet and side walls on the stairway; F. Insecure and unstable stairway railing; G. Foreign substance at foot of tub in the southwest bathroom; H. Foreign substance on face frame and desk top nosing in the master bedroom; I. Hump in the master bedroom floor sheeting; J. Gap Between the door (north side), casing and the wall in the master bath; K. Foreign substance on edge of toe kick in the master bath; L. Excess lippage on tile floor[2] on the first floor near “powder room”; M. A subcontractor’s lien filed on the Complainant’s property.[3] 8. In addition to the above, Duncan testified that two new items were created as a consequence of some of the corrective work that was performed in response to the CWO. These are paint splatter in back of the living room couch and on the towel bar in the master bath. 9. Review of the Respondent’s license history shows that the license was suspended from December 14, 2005 to December 18, 2006 and February 2, 2008 to March 4, 2008 for lack of bond[4]. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154(A)(7), a wrongful act with substantial injury; (A)(3)/A.A.C. R4-9- 108 workmanship standards; (A)(18), contracting while the license is suspended; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P. 2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P. 2d 508 (App. 1996). 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). 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 (6th ed. 1990). 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. The majority of the items which remain to be corrected appear rather minor. The loose stairway railing, and perhaps the floor hump in the bedroom and the tile lippage have the potential for causing significant injury[5]. 5. The facts as presented are not contested and clearly establish violations of (A)(3)/A.A.C R4-9-108, (A)(7) and (A)(23)[6]. 6. The evidence was not sufficiently precise to establish that the Respondent was engaged in contracting while the license was suspended.[7] There is no proven violation of (A)(18). 7. In light of the facts of the case, the revoked status of the Respondent’s license, and the Respondent’s failure to appear, the Administrative Law Judge submits the following recommendation. Recommended Order It is recommended commencing the effective date of the Order issued in this case[8], that the Class B-, License No. 198412 of the Respondent shall be revoked.

Done this day, September 17, 2008

______________________________________ Allen Reed Administrative Law Judge

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

Armando Contreras , Acting Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] According to the ROC website, the Respondent’s license was revoked August 25, 2008, for failure to pay a $200.00 civil penalty. [2] According to Duncan, a single tile. [3] According to the Complainant, the lien was erroneously filed on behalf of the plumbing subcontractor against his particular unit. If this is the case, the matter is not attributable to the Respondent. [4] There appears to have been an additional suspension during the same period for nonrenewal of the license. [5] The Complainant testified he was nearly injured because of the faulty stairway railing. [6] Excepting the subcontractor’s lien which has not been shown to be attributable to the Respondent. [7] Presumably the Respondent was engaged in some type of contracting in 2006 while the license is listed as suspended. The Complainant testified he purchased his home through an entity other than the Respondent and there is no evidence of any specific contracting activity by the Respondent during the suspension periods. [8] Forty (40) days from the date of the Order or from the 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