ALJDEC decisions subject to certification as final

2010A-308471810-ROC · Registrar of Contractors · 2011-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2011, at 10:00 a.m. APPEARANCES: The Complainants appeared through Gregory Fernald. 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 The Respondent’s Class B (No. 200672) License was revoked on January 19, 2011. 2. This is a residential matter where the Respondent entered into a construction contract with the Complainants to construct a new single family log residence for the Complainants for the total sum of $344,652.00. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s poor workmanship and the Respondent’s apparent dishonesty. 4. Undisputed credible testimony and evidence established that on August 18, 2009, the local building authority conducted a BD-Rough Trade Inspection of the new residence. 5. Undisputed credible testimony and evidence established that the local building authority found thirteen (13) different code violations and failed the Respondent’s partially completed construction work. 6. Undisputed credible testimony and evidence established that the Respondent’s partially completed framing work was so poor as to constitute a health and safety danger. 7. The Complainants then demanded that the Respondent promptly correct the problems with the construction of their new residence. 8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the Complainants’ demands and abandoned the construction project leaving the Complainants with an unfinished residence. 9. When the Respondent failed to comply with the Complainants’ demands and abandoned the construction project, the Complainants terminated the Respondent from their construction project and filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Undisputed credible testimony and evidence established that the Respondent failed to comply with applicable plans and specifications and that the Respondent’s workmanship in the framing of the new residence was so far below applicable industry and workmanship standards as to constitute a health and safety danger to the public. 11. Undisputed credible testimony and evidence established that the Respondent failed to take measures to protect construction materials from damage during the construction of the new residence and that as a result of the Respondent’s lackadaisical construction practices, the Complainants were forced to replace much of the construction materials that were delivered to the Respondent. 12. Undisputed credible testimony and evidence established that the Respondent had agreed to complete the construction of the Complainants’ new log residence on October 1, 2009. 13. Undisputed credible testimony and evidence established that the framing of the new residence was not properly completed on October 1, 2009. 14. Undisputed credible testimony and evidence established that the Respondent knowingly took monetary draws for construction materials that were never delivered to the Complainants’ residence. 15. Undisputed credible testimony and evidence established that the Respondent failed to pay for material suppliers for materials of more than seven hundred fifty dollars in cost and value that were delivered to the construction site, despite the fact that the Complainants had previously paid the Respondent for the materials. 16. Undisputed credible testimony and evidence established that the Respondent installed a septic system that belonged to another homeowner at the Complainants’ residence. 17. Undisputed credible testimony and evidence established that the Respondent knowingly removed construction materials from the jobsite that the Respondent knew belonged to the Complainants. 18. Undisputed credible testimony and evidence established that the Respondent knowingly submitted invalid back charges to the Complainants. 19. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondent was advised that in the event of a finding of a violation against the Respondent, the Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary Orders against the Respondent. 20. The Respondent’s prior license record is deemed to be poor and thus is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case. 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 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) (7) (Fraudulent Act), A.R.S. § 32-1154 (A) (11) ( Failure to pay monies in excess of seven hundred fifty dollars when due), 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 22, 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