ALJDEC decisions subject to certification as final

2010A-1163529-ROC · Registrar of Contractors · 2011-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Roger Strassburg. 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.223730) License was suspended for lack of bond on March 12, 2010. 2. The Respondent is not able to contract with this License as of February 14, 2011. 3. This is a residential matter where the Complainants purchased a new residence located at 2273 Green Cove Drive, Overgaard, Arizona. 4. There was no dispute that the new residence had been constructed by the Respondent. 5. Undisputed credible testimony and evidence established that the Complainants observed numerous construction deficiencies in the new residence and required that the Respondent agree to properly correct all of the workmanship deficiencies in the new residence before the Complainants would agree to purchase the new residence. 6. Undisputed credible testimony and evidence established that the Respondent agreed to correct all of the construction deficiencies in the new residence as part of the purchase agreement between the parties. 7. Undisputed credible testimony and evidence established that the Respondent failed to correct its workmanship deficiencies in a professional and workmanlike manner. 8. When the Respondent failed to correct the workmanship deficiencies in the new residence to within applicable workmanship and industry standards, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 10. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 11. Undisputed credible testimony and evidence established that the Respondent failed to take appropriate safeguards while attempting to correct the concrete floor in the new residence, and that as a consequence thereof, the entire residence was contaminated with concrete dust. 12. Undisputed credible testimony and evidence established that when the Respondent failed to comply with the terms of the written Corrective Work Order and contaminated their residence with concrete dust, the Complainants retained an alternative contractor to properly correct the Respondent’s workmanship deficiencies in their new residence. 13. Undisputed credible testimony and evidence established that the Complainants have been required to pay a total of $40,153.22 to have the Respondent’s construction deficiencies in their new residence corrected to within applicable workmanship and industry standards. 14. All of the required corrective actions set forth in the written Corrective Work Order have now been fully corrected and no further corrective action on the Complainants’ new residence is required. 15. The Complainants’ action in retaining an alternative contractor to perform corrective action on their new residence at a cost of $40,153.22 is found to be reasonable and justified under the circumstances herein. 16. Undisputed credible testimony and evidence established that the Complainants’ cost of $40,153.22 for having the construction deficiencies in their new residence corrected to within applicable workmanship and industry standards is reasonable and justified under the circumstances herein. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have 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 a 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 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) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, rule 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 the Respondent’s License be revoked on the effective date of this Order of Revocation. 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, February 14, 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