ALJDEC decisions subject to certification as final

2009A-28820782-ROC-RHG · Registrar of Contractors · 2011-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his 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 on Rehearing are made: FINDINGS OF FACT 1. The Respondent’s Class B (No. 110896) License was revoked on June 1, 2011. 2. This is a residential matter where the Respondent constructed a large custom home for the Complainant for the sum of $1,600,000.00. 3. The Complainant was dissatisfied with the Respondent’s workmanship on the new residence and repeatedly requested that the Respondent properly correct its unacceptable workmanship on the new residence. 4. When the Respondent failed to comply with the Complainant’s repeated requests the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted several on-site inspections and issued two (2) written Corrective Work Orders directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the two (2) Corrective Work Orders. 7. Undisputed credible testimony and evidence established that the Respondent knowingly departed from or disregarded plans or specifications and building codes. 8. Undisputed credible testimony and evidence established that the Respondent failed to perform its construction work in a professional and workmanlike manner. 9. Undisputed credible testimony and evidence established that the Respondent failed to complete the construction project at issue for the price stated in the parties’ construction contract. 10. Undisputed credible testimony and evidence established that the Respondent knowingly utilized unlicensed persons to perform construction work as subcontractors on construction project at issue. 11. 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 testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (9) (Failure in a material respect to complete a construction project for the price stated in the contract), A.R.S. § 32-1154 (A) (10) (Aiding or abetting an unlicensed person to evade this chapter), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), 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 of Revocation. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $1,000.00 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, June 15, 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