ALJDEC decisions subject to certification as final

2010A-308472604-ROC · Registrar of Contractors · 2010-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Diane Robbins. 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-3 License (No. 246892) was suspended by the Registrar of Contractors on July 1, 2010, for non-renewal. 2. This is a residential matter where the Complainant entered into a written construction agreement on October 21, 2008, with a person identified as Andy Santiago who represented himself as being an authorized representative of the Respondent. 3. The written agreement provides that the Complainant was to pay the sum of three thousand dollars to A F Robbins Roofing and Construction Inc. when the agreed upon roofing work was completed. 4. There was no dispute that Andy Santiago then offered a cash discount to the Complainant and that on October 22, 2008, the Complainant paid Andy Santiago Two Thousand Eight Hundred Dollars ($2,800.00) in cash as payment in full for the agreed upon roofing work. 5. There was no dispute that Andy Santiago and several assistants then performed the agreed upon roofing repair work on the Complainant’s residence. 6. Credible testimony and evidence established that the new roofing work on the Complainant’s residence was not performed in a professional and workmanlike manner and that the newly repaired roof leaked. 7. The Complainant then attempted to contact Andy Santiago, and when he was unable to contact Andy Santiago, the Complainant then attempted to directly contact the Respondent. 8. Credible testimony and evidence established that the Respondent had closed its doors and was no longer operating as a business entity when the Complainant attempted to contact it. 9. When the Complainant was unable to contact the Respondent, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 11. There was no dispute that the Inspector gave the Respondent written notice of the date scheduled for the onsite inspection and that despite this written notice, the Respondent did not appear at the onsite inspection. 12. The assigned Agency Inspector then conducted the scheduled inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s roof. 13. There was no dispute that the Respondent did not comply with the terms of the Corrective Work Order, that the Complainant’s roof still leaks, and that the leaking roofing has caused substantial moisture damage in the interior of the Complainant’s residence. 14. There was no dispute that Andy Santiago had once been an employee of the Respondent. 15. Credible testimony and evidence established that Andy Santiago is not a licensed contractor in the State of Arizona. 16. Credible testimony and evidence established that Andy Santiago was not an employee of the Respondent during 2008 or at any time after 2008. 17. Credible testimony and evidence established that Andy Santiago performed roofing work on a least two different construction projects, including the Complainant’s residence, during 2008, and that in both instances Andy Santiago held himself out as being an authorized representative of the Respondent, utilizing the Respondent’s name and license number on written contracts with the homeowners involved. 18. Credible testimony and evidence established that after entering into a written agreement with a homeowner, Andy Santiago would then offer a discount for cash and would then write out a receipt to the homeowner for any cash received. 19. Andy Santiago and his assistants would then perform unlicensed roofing work on the homeowner’s residence. 20. There was no credible evidence that the Respondent either knew or should have known that Andy Santiago was utilizing the Respondent’s license number and name to perform unlicensed roofing work on the Complainant’s residence. 21. There was no credible evidence that the clothes worn by Andy Santiago or his assistants identified them as being employees of the Respondent, nor was there any credible evidence that the vehicles utilized by Andy Santiago and his assistants were labeled or marked as being the Respondent’s vehicles. 22. Credible testimony and evidence established that the written contract utilized by Andy Santiago is not the same, or even similar to, the written construction contracts utilized by the Respondent. 23. There was no credible evidence that the Respondent received any of the money paid by the Complainant to Andy Santiago. 24. Credible testimony and evidence established that the Complainant made no effort to directly contact the Respondent or the Registrar of Contractors until several months after the roofing work had been performed and his roof started to leak. 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. The credible testimony and evidence of record failed to support a finding that the Respondent either knew or should have known that Andy Santiago was utilizing its name and license number to perform unlicensed roofing work on the Complainant’s residence. 5. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A), as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, December 22, 2010.

/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