ALJDEC decisions subject to certification as final

2010A-308471866-ROC · Registrar of Contractors · 2011-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Corey Mathis. The Respondent appeared through its authorized representative, Bill Johnson. 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 C-34 (No. 158696) License issued by the Registrar of Contractors. 2. The Complainant is the holder of a Class B (No. 160265) License issued by the Registrar of Contractors. 3. This is a residential matter where the Respondent performed painting and staining work on a new residence the Complainant was building as a general contractor. 4. The owner of the new residence was dissatisfied with the Respondent’s painting and staining work and filed a formal complaint against C T B Construction Inc., with the Registrar of Contractors. 5. The Complainant then filed a formal complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint against the Respondent, an assigned Agency Inspector conducted an onsite inspection and on April 26, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the painting and staining at the residence at issue. 7. Credible testimony and evidence established that the Respondent failed to comply with terms of the written Corrective Work Order. 8. Credible testimony and evidence established that the Respondent’s painting and staining work on the new residence at issue failed to comply with applicable workmanship and industry standards. 9. When the Respondent failed to comply with the terms of the Corrective Work Order, the Complainant entered into a settlement agreement with the homeowner to resolve the homeowner’s complaint against C T B Construction’s License based upon the poor staining and painting work performed by the Respondent. 10. Credible testimony and evidence established that in accordance with the terms of the Complainant’s settlement agreement with the homeowner, C T B Construction Inc. paid the homeowner the sum of $7,300.00 for the cost of new replacement doors to resolve the homeowner’s complaints regarding the Respondent’s unacceptable painting and staining work on the new residence. 11. The Complainant now seeks restitution from the Respondent in the sum of $7,300.00. 12. The Complainant’s actions, in entering into a settlement agreement with the homeowner and resolving the homeowner’s complaint regarding the unacceptable painting and staining on the residence at issue when the Respondent failed to comply with the terms of the Corrective Work Order, were shown to be reasonable and justified under the circumstances. 13. The sum of $7,300.00 was shown to be the actual cost of replacing the poorly stained and painted doors at the residence at issue. 14. Credible testimony and evidence established that the Respondent failed to comply with the provisions of A.R.S. § 32-1124(B) (Display of license). 15. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (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 commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the Complainant the sum of $7,300.00 and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B).. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action and provides acceptable proof that the Respondent is in full compliance with the terms of A.R.S. § 32- 1124 (B), on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, March 23, 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