ALJDEC decisions subject to certification as final

2009A-3088498-ROC · Registrar of Contractors · 2012-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2012, at 8:15 a.m. APPEARANCES: The Complainants appeared through Doris Susca. The Respondent appeared through its authorized representative, Gregory Schmidt. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows: .At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent engaged in conduct constituting violations of A.R.S. § 32-1154(A) (2), (7), (9), (23) and (3). If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be imposed immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.

2. There was no dispute that Respondent had failed to pay Complainants the three thousand dollars ($3,000.00) that it agreed to pay in the parties’ written Settlement Agreement. 3. Respondent asserted that the parties’ written agreement should be modified to deduct the five hundred dollars ($500.00) that Respondent allegedly paid to Complainants’ home owner’s association (“HOA”) as a deposit for the construction project at issue. 4. Undisputed credible testimony and evidence established that the money that Respondent allegedly paid to Complainants’ HOA is not addressed in the parties’ written Settlement Agreement. 5. There was no dispute that Respondent has failed to seal Complainants’ deck as required in the parties’ written Settlement Agreement. 6. Respondent asserted that he was unable to perform the agreed upon corrective work because he now lived in the State of Texas and License No. KB-1.192511-D had been revoked by the Registrar of Contractors. 7. Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the parties’ written Settlement Agreement. On the contrary, credible testimony and evidence established that Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the parties’ written Settlement Agreement. 8. The weight of the credible evidence of record established that Respondent departed from or disregarded plans or specifications or applicable building codes in the construction work that it performed on Complainants’ residence. 9. Respondent breached the terms of the parties’ written Settlement Agreement by not paying the Complainants the agreed upon sum of money set forth in the parties’ written Settlement Agreement. 10. Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter and Respondent failed to fully complete the construction project at issue. 11. Respondent’s workmanship on Complainants’ residence fails to comply with applicable workmanship and industry standards. 12. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 30, 2012. Such prior License record reflects that License No. KB-1.192511-D of A J R Construction Inc was revoked on October 5, 2011, and suspended on February 9, 2011 and October 5, 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). 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). 3. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. 4. Credible testimony and evidence supported findings which establish that the Respondent has violated 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)(7) (wrongful act), A.R.S. § 32- 1154(A)(9) (failure in a material way to complete a construction project), A.R.S. § 32-1154 (A) (failure to take appropriate corrective action), and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed Order In view of the foregoing, it is recommended that License No. KB- 1.192511-D of A J R Construction Inc be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(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, April 9, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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