ALJDEC decisions subject to certification as final

08F-2005-ROC · Registrar of Contractors · 2009-05-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20 and May 11, 2009 APPEARANCES: Complainant: Complainant Voule Kapetanakis appeared, pro per. Respondent: Manuel Medina, partner, appeared at the January 20, 2009 hearing, pro per. Respondent failed to appear at the May 11, 2009 hearing either through authorized representative or counsel. 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. This matter first convened for hearing at the time, date and place set forth in the Registrar of Contractors’ (ROC/Registrar) Notice of Hearing dated December 16, 2008. The parties did not conclude the presentation of evidence at that time and the matter was set for further hearing on May 11, 2009. 2. Complainant Voule Kapetanakis (“Complainant”) is the owner of a residence located at 7723 N. 187th Ave., Waddell, Arizona (“premises/project”). 3. Respondents Mario Steven Medina (“MS Medina”) and Manuel Cortez Medina (“MC Medina”) (“Respondents”) are partners doing business as Economy Landscaping Granite and Sodding which holds ROC License No. 080542, Class C-2R (Residential Landscaping), issued by the ROC on October 21, 1988. MC Medina is the qualifying party for the license. 4. Complainant filed a Complaint with the ROC on January 24, 2008, wherein he alleged, inter alia, six (6) items of poor landscaping construction and workmanship which resulted in Complainant terminating Respondents from the project.[1] Complainant seeks reimbursement of $1,600.00 for costs incurred “repairing the poor work done.” 5. On August 28, 2008, the Registrar issued a Citation and Complaint in Case No. 08-2005 charging Respondents with possible violations of A.R.S. § 32-1154(A) (7) and (3) (namely, R4-9-108, the workmanship rule). 6. Respondents filed an answer on September 5, 2008, wherein they alleged, inter alia, that they were terminated from the project, other contractors completed the job, and Complainant failed to pay them $1,850.00 for additional work performed. 7. At the hearing, Complainant credibly testified and submitted Exhibits 1A – M, 2A – C, 3, 4A – D, 5A, 5C - F, 6A – C, 7A – J, 10, 11 and which were marked, admitted and considered. William Gabriel (“Gabriel”) also testified on behalf of Complainant. 8. MC Medina testified at the January 20, 2009 hearing but submitted no exhibits.[2] Respondents failed to appear at the May 11, 2009 further hearing, either individually or through any authorized representative or counsel. 9. On December 18, 2007, the parties entered into a contract (“contract 1”) whereby Respondent was to perform landscaping work on the premises for a total of $2,880.00. (Exhibit 11) 10. On December 21, 2007, Complainant paid Respondent the entire amount due on contract 1. 11. On December 26, 2007, the parties entered into a second contract (“contract 2”) whereby Respondent was to perform additional landscaping work on the premises for a total of $1,200.00 (Exhibit 12) which Complainant paid in full that day. 12. Complainant testified that, during the course of their performing work on the project, Respondents used unqualified and inexperienced laborers who created most, if not all, of the workmanship problems. 13. On approximately December 28, 2007, Complainant telephoned MC Medina to express dissatisfaction with the worker situation and workmanship. Complainant further testified that in response to his comments MC Medina cursed at him and told Complainant never to call again. 14. Complainant also testified that, as a result of the above- referenced verbal assault, Complainant terminated Respondents from the project on December 29, 2007. Complainant requested police involvement that day when MC Medina returned to the premises to retrieve Respondents’ equipment out of concern for his family due to MC Medina’s temper. 15. Gabriel, an Arizona licensed contractor, testified that the flagstone and grout work performed by Respondents and their laborers was “unprofessional, unfinished and unacceptable.” Gabriel further testified that the spots left were the cement from the flagstone installation and were not to minimum workmanship standards. 16. Given Respondents’ poor workmanship and hostile behavior, Complainant retained the services of Gabriel’s company, Discount Tile, Inc., to correct and/or complete the project. 17. Complainant seeks reimbursement of $1,600.00 paid to Gabriel to correct/complete the project. (Exhibit 10) 18. MC Medina testified that Respondents were fired “for no reason at all,” Respondents were in the process of cleaning some areas at the time of termination, and performed additional work outside the two contracts for which they were not paid. 19. MC Medina also asserted that Complainant refused to return certain materials to Respondents. Complainant testified that the referenced materials were included in the price of the contracts and were rightfully his to retain.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 08- 2005 charged Respondent with possible violations of A.R.S. § 32-1154(A) (7) 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. … 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 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(A). 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. § 32-1154(A) (3) and A.A.C. R4-9-108, the workmanship rule, as they pertain to the six (6) Complaint items set forth in Finding of Fact 4. 5. This tribunal further determines and concludes that, based on the violations set forth in Conclusion of Law 4 above, Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154(A) (7) as charged in the issued Citation. 6. It is also determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence the right to restitution in the amount of $1,600.00, the charges incurred by Complainant for retention of Gabriel to correct the Complaint items delineated in Finding of Fact 4.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order issued in this matter, the Class C-21R License of Respondents be suspended until the Registrar receives written proof that Respondents have remitted to Complainant as restitution the $1,600.00 cost incurred by Complainant to have the Complaint items corrected and/or completed by Gabriel. IT IS FURTHER RECOMMENDED that, in the event Respondents remit the stated sum to Complainant on for before the effective date of the Registrar’s Order entered in this matter, then the aforementioned license suspension shall not take place.[3] Done this day, May 15, 2009.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Theses items were delineated as: “(1) flagstone spaced to [sic] far apart (all of job); (2) mortar was not cleaned off flagstone (all of job); (3) mortar had to be ground out and replaced (west & south side); (4) flagstone at base of steps for patio was half the step width; (5) excess dirt & mortar was to be placed on east side of fence – piled up on west side; and, (6) verbal agreement was to grade & trench along east & southeast side.” [2] MC Medina was testifying on direct when the initial hearing was adjourned. Respondents did not complete the presentation of their case-in- chief. [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