ALJDEC decisions subject to certification as final

2010A-308471915-ROC · Registrar of Contractors · 2011-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Rodney Mitchell. The Respondent appeared through its authorized representative, Allie Layde. 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 KB-1 (No. 257857) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainants suffered extensive fire damage to their residence and the Respondent was retained to perform fire restoration work on the Complainants’ residence. 3. During the course of construction, the Complainants became increasingly dissatisfied with the Respondent’s workmanship. When the fire restoration project was approximately sixty percent complete, the parties mutually agreed to terminate their relationship, and the Complainants retained alternative contractors to complete the restoration of their home. 4. When the fire restoration project was completed and the Complainants moved back into their home, the Complainants noticed several areas of unsatisfactory workmanship that had been performed by the Respondent. 5. When the Respondent failed to comply with the Complainants’ repeated requests to return to the residence and properly correct its construction errors, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on May 14, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 7. The written Corrective Work Order provides, in pertinent part, as follows:

Contractor to make the following corrections by appropriate means: Correct the out of level tub and shower door. Correct the hot water faucet at the right hand sink in the master bath. Correct the unstable hose bib at the rear of the house.

The plumbing, electrical and wall repair issues listed in items #1 & #2 on the complaint form could not be confirmed to be the contractor’s responsibility and no correction is required at this time.

8. The Respondent declined to perform the directed corrective action on the out of level tub and shower door. 9. Credible testimony and evidence established that the Respondent did properly correct the remaining items of the Corrective Work Order. 10. Credible testimony and evidence established that the tub and shower door are out of level and fail to comply with applicable workmanship and industry standards. 11. Credible testimony and evidence established that the Respondent installed the tub and shower door and that the Respondent is fully responsible for ensuring that the tub and shower door were installed in a professional and workmanlike manner. 12. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 13. The Respondent shall properly correct the tub and shower door as per the terms of the written Corrective Work Order. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of 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 that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, 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, August 24, 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