ALJDEC decisions subject to certification as final

2010A-290391-ROC · Registrar of Contractors · 2011-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. 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 is the holder of a Class B (No. 178738) License issued by the Registrar of Contractors. 2. This is a residential matter where on June 13, 2009, the parties entered into a written construction agreement for the Respondent to perform remodeling and addition work on the Complainant’s residence located at 210 Second Street, Holbrook, Arizona, for the total sum of $25,142.80. 3. There was no dispute that pursuant to the terms of the parties’ construction agreement the Complainant paid the Respondent $15,000.00 to begin the construction project. 4. Credible testimony and evidence established that the Respondent performed no construction work on the Complainant’s residence from June 13, 2009, through July 27, 2009. 5. Credible testimony and evidence established that the Respondent repeatedly failed to return the Complainant’s telephone calls and failed to appear at the construction site to perform the agreed upon construction work. 6. The Complainant was dissatisfied with the Respondent’s failure to maintain communications with her and with his apparent abandonment of the construction project. 7. When the Respondent failed to comply with the Complainant’s repeated demands that he return to her residence and promptly complete the construction project, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors on July 27, 2009. 8. Credible testimony and evidence established that after the formal complaint was filed with the Registrar of Contractors, the Respondent contacted the Complainant. 9. Credible testimony and evidence established that the Respondent then submitted a proposed work schedule to the Complainant. 10. Credible testimony and evidence established that the Respondent refused to level the Complainant’s back yard until the debris and dead vegetation was removed from the yard. 11. Credible testimony and evidence established that the removal of the debris and dead vegetation was an integral part of the parties’ construction agreement. 12. Credible testimony and evidence established that the Respondent refused to include the installation of new electrical wiring in the southwest corner of the Complainant’s residence as part of the agreed upon electrical upgrade to the Complainant’s residence. 13. Credible testimony and evidence established that the installation of a new electrical wiring to the Complainant’s home office in the southwest corner of the Complainant’s residence was an integral portion of the parties’ construction agreement. 14. Credible testimony and evidence established that the Complainant was dissatisfied with the Respondent’s workmanship on her residence. 15. Credible testimony and evidence established that the Respondent then apparently stopped work on the construction project, again leaving the Complainant with an unfinished residence. 16. Credible testimony and evidence established that the Complainant then issued a written communication to the Respondent informing him to cease and desist all work at her residence. 17. Credible testimony and evidence established that Complainant’s issuing of a written cease and desist communication to the Respondent was in accordance with the terms of the parties’ written agreement. 18. The Complainant then retained alternative contractors to perform the contractual electrical upgrade, perform structural repairs to the exterior walls of the residence, replace non-functional and broken windows, place cement around the storage building, remove the debris in the yard that constituted a city code violation, and install a new hot water heater. 19. Undisputed credible testimony and evidence established that the local utility company was requiring the immediate upgrade of the Complainant’s electrical box and that the local municipality was requiring the Complainant to promptly clean up her back yard. 20. The Complainant’s actions, in retaining alternative licensed contractors to correct and complete the construction project on her residence, were shown to be reasonable and justified under the circumstances. 21. Credible testimony and evidence established that the Complainant’s actions, in issuing the cease and desist letter to the Respondent and retaining alternative contractors to perform required construction work on her residence, were reasonable and justified under the circumstances. 22. Credible testimony and evidence established that the Respondent’s workmanship on the few construction items that the Respondent actually completed at the Complainant’s residence failed to comply with applicable workmanship and industry standards. 23. The Respondent’s actions, in taking a $15,000.00 down payment from the Complainant and leaving the Complainant with an unfinished construction project for over nearly two months, are found to constitute an abandonment of the construction project. 24. Credible testimony and evidence established that the Complainant received little, if any, value for the money that she paid the Respondent. 25. Credible testimony and evidence established that the Respondent departed from or disregarded specifications for the construction project.

26. 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. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes), and A.R.S. § (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 the 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, June 6, 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