ALJDEC decisions subject to certification as final

2010A-19665686-ROC · Registrar of Contractors · 2011-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2010 at 8:00 a.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 The Respondent’s Class B (No 242749) License was revoked on August 24, 2010. 2. Undisputed credible testimony and evidence established that the Complainant entered into a construction agreement with the Respondent and that the Respondent then performed construction work on the Complainant’s residence. 3. The Complainant was extremely dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to within applicable workmanship and industry standards despite her repeated requests that the Respondent do so. 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 (ROC). 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on December 8, 2009, used a written Corrective Work Order 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 Corrective Work Order. 7. Undisputed credible testimony and evidence established that the written agreement utilized by the Respondent for this construction project failed to contain the minimum elements of a contract required by applicable statute. 8. Undisputed credible testimony and evidence established that the Respondent failed to display its ROC License as required by the A.R.S. § 32-1124B. 9. Undisputed credible testimony and evidence established that the Respondent departed from or disregarded applicable plans and specifications. 10. Undisputed credible testimony and evidence established that the Respondent acted in the capacity of a licensed contractor in a name other than as set forth upon the Respondent’s License. 11. Undisputed credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of its License. 12. Undisputed credible testimony and evidence established that the Respondent knowingly performed contracting work while the Respondent’s License was under suspension. 13. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 14. Notice is taken of the Respondent’s poor 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 which established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications), A.R.S. § 32-1154 (A) (15) (Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license), A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee), A.R.S. § 32-1154 (A) (18) (Contracting or offering to contract while the license is under suspension), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), A.R.S. § 32-1154 (A) (13); Namely, A.R.S. § 32-1124B, and A.R.S. § 32-1154 (A) (3); namely, 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 $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, January 5, 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