ALJDEC decisions subject to certification as final

2007A-9096048-ROC · Registrar of Contractors · 2011-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 6, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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’s Class B (No. 189933) License expired on November 1, 2008. 2. This is a residential matter where the Respondent agreed to construct a new residence for the Complainant for the total sum of $220,800.00. 3. There was no dispute that the Complainant paid the Respondent $220,000.00 in cash at the onset of the construction project. 4. Undisputed credible testimony and evidence established that the Respondent started construction work on the Complainant’s residence and then abandoned the construction project leaving the Complainant with an unfinished residence and a dangerous condition on her property. 5. When the Respondent failed to return and complete the construction project, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s new residence failed to comply with applicable workmanship and industry standards. 9. Undisputed credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications and applicable building code requirements and that the Respondent’s construction work at the Complainant’s residence is so poor as to require removal and replacement. 10. Undisputed credible testimony and evidence established that the Respondent failed to complete the construction project at issue for the price stated in the contract between the parties. 11. Undisputed credible testimony and evidence established that the Respondent acted in the capacity of a contractor on this construction project in a name other than as set forth upon the Respondent’s license. 12. Undisputed credible testimony and evidence established that the Respondent failed to properly display its license number as required by the applicable provisions of A.R.S. § 32-1124 (B). 13. Undisputed credible testimony and evidence established that the Complainant has obtained a civil court judgment (#C20070996) in Pima County Superior Court against the Respondent in the sum of $126,200.00 plus costs and attorney’s fees for the Respondent’s breach of contract in this matter. 14. Undisputed credible testimony and evidence established that the Respondent has failed to satisfy the civil court judgment against it. 15. Undisputed credible testimony and evidence established that the Complainant has received nothing of value for the $220,000.00 that she paid to the Respondent in this matter. 16. The Respondent’s actions, in accepting $220,000.00 from the Complainant, then failing to perform its work in accordance with plans, specifications, applicable building codes, and workmanship standards, and then abandoning the construction project leaving the Complainant with an unfinished residence and a dangerous condition on her property, are found to constitute a wrongful act. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. Undisputed credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or building codes), A.R.S. § 32-1154 (A) (7) (wrongful act), A.R.S. § 32-1154 (A) (9) (failure in a material respect to complete a construction project for the price stated in the construction project), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license) and A.R.S. § 32- 1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. 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, October 6, 2011.

/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