ALJDEC decisions subject to certification as final

2010A-17903641-ROC · Registrar of Contractors · 2011-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared through its attorney, Chad A. Hester. The Respondent appeared through its attorney, Calvin J. Platten Jr. 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 A- (No.088820) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that on September 15, 2006, the Respondent entered into a contract to install an underground waterline on Carriage Drive, in Maricopa County, Arizona. 3. Credible testimony and evidence established that the parties also entered into a separate contract for the Respondent to perform paving work on Carriage Drive after the waterline was installed. 4. Credible testimony and evidence established that during the course of construction, the Complainant became dissatisfied with the Respondent’s workmanship and terminated the Respondent from the construction site. 5. The parties then became embroiled in a concurrent civil action, and the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 6. There was no onsite inspection because the construction work has been completed by an alternative licensed contractor. 7. At the onset of the scheduled hearing, the parties stipulated to dismiss all of the issues relating to the performance of construction work set forth in the Complainant’s complaint which the parties would address in their concurrent civil action and that the hearing would proceed only for the matters concerning alleged licensing violations. 8. Credible testimony and evidence established that the Respondent’s construction work for the waterline project was performed on appurtenances on or within residential property lines. 9. Credible testimony and evidence established that the Respondent can not bid, contract, subcontract or perform any construction work within residential property lines under the Respondent’s Class A- License. 10. Credible testimony and evidence established that the Respondent contracted for and performed residential construction work on the construction project at issue. 11. Credible testimony and evidence established that the Respondent is not licensed to contract for or perform residential construction work. 12. Credible testimony and evidence established that the Respondent contracted for and performed construction work beyond the scope of the Respondent’s Class A- commercial License. 13. The Respondent is found to have violated the charged provisions of A.R.S. § 32-1154 (A) (17). 14. Credible testimony and evidence established during the time the construction project at issue took place, the Respondent was performing somewhere between five hundred thousand dollars ($500,000.00) and one million dollars ($1,000.000.00) worth of commercial constriction work a year. 15. There was no dispute the Respondent’s bond was less than fifteen thousand dollars ($15,000.00). 16. Credible testimony and evidence established that the Respondent’s bond should have been no less than fifteen thousand dollars ($15,000.00). 17. The Respondent is found to have violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1152 and A.R.S. § 32-1154 (A) (3), namely A.A.C. R4-9-112. 18. The credible testimony and evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. § 32-1153 (Proof of license), A.R.S. § 32-1158 (Minimum elements of a contract), A.R.S. § 32-1165 (Advertising), and A.R.S. § 32-1127 (Qualifying party). 19. The credible testimony and evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. § 32-1154 (A) (6) (Misrepresentation). 20. The credible testimony and evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. § 32-1154 (A) (9) (Failure to complete). 21. Pursuant to the parties’ stipulation no evidence was presented regarding the alleged violations of the provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications of building codes) 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). 22. Notice is taken of the Respondent’s excellent 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. A.A.C. R4-9-112 provides, in relevant part, as follows: A. Bond limits. In accordance with the provisions of A.R.S. § 32- 1152, license bonds are established in the following amounts, based upon the estimated annual volume of work anticipated by the contractor within the State of Arizona for the ensuing fiscal year: 1. General Commercial Contacting and Engineering Contracting …. Estimated Annual Volume $500,000 or more, but less than $1,000,000 [Bond Amount $15,000] 5. The credible evidence of record supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (17) (Contracting beyond the scope of the license of the licensee), A.R.S. § 32-1154 (A) (3), namely, A.A.C. R4-9-112, and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1152.

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License shall be actively suspended for a period of twenty (20) days to be followed by one hundred and twenty (120) days of disciplinary probation. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that the Respondent first post a bond that complies with the provisions of A.A.C. R4-9-112 based upon the Respondent’s current estimated annual volume of construction work. 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, January 10, 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