ALJDEC decisions subject to certification as final

09F-P0275-ROC · Registrar of Contractors · 2009-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2009 at 10:30 a.m. APPEARANCES: The Complainants appeared through Steve Duffey. The Respondent appeared through its authorized representative, Errin Butler. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainants purchased a new residence that they believed had been constructed by the Respondent. 3. There was no dispute that the residence had in fact been constructed by an unlicensed person utilizing the Respondent’s License. 4. Credible testimony and evidence established that the Respondent knowingly allowed the unlicensed person to utilize its Class B- License based upon the unlicensed person’s representation that the residence would be his own private residence. 5. There was no dispute that the unlicensed person then sold the residence within five (5) months of the issuance of the certificate of occupancy. 6. Credible testimony and evidence established that the residence could not have been sold at that time without the use of the Respondent’s License number. 7. Credible testimony and evidence established that the Complainants would not have purchased their new residence had they known that the residence had been constructed by an unlicensed person. 8. Credible testimony and evidence established that the Complainants are experiencing settlement problems with their new residence caused by a sinking pier. 9. Credible testimony and evidence established that the Complainants paid a licensed contractor $350.00 to perform a temporary fix for the settlement problems in an effort to prevent further damage to their residence. 10. The Complainants’ actions, in paying a licensed contractor to perform a temporary repair on their residence to prevent further damage to the residence, are found to be reasonable and justified under the circumstances. 11. The Respondent’s actions in knowingly allowing an unlicensed person to utilize its contractor’s License are found to constitute aiding and abetting an unlicensed person to evade the state’s contracting laws. 12. The Respondent’s actions, in knowingly allowing an unlicensed person to utilize its contractor’s License and in then allowing the residence to be sold utilizing its contractor’s License number, are found to constitute a wrongful act. 13. The Respondent is found to be fully responsible for the workmanship on the Complainants’ residence. The Respondent shall properly correct the problem with the sinking pier and properly correct any settlement problems caused by the sinking pier. 14. The Respondent is found to be responsible for the payment of $350.00 to the Complainants as restitution for the Complainants’ cost of causing a temporary fix to their residence to prevent further settlement damage to their residence. 15. Notice is taken of the Respondent’s prior excellent License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 (A)(7) (Wrongful Act) and (A)(10) (Aiding and abetting an unlicensed person to evade the provisions of this chapter). 2. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly corrected the sinking pier and settlement problems with the Complainants’ residence and has properly, as restitution, paid the Complainants the sum of $350.00.. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, December 3, 2009.

/s/ M. Douglas Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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