ALJDEC decisions subject to certification as final

2010A-308472611-ROC · Registrar of Contractors · 2011-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Mark A. Tucker. 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-2 (No. 230179) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement wherein the Respondent agreed to construct an addition and perform remodeling work on the Complainant’s existing residence for the total sum of $79,884.00. 3. During the course of construction the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s alleged failure to complete the construction project in a timely manner. 4. The personal relationship between the parties deteriorated rapidly and in an attempt to end their increasingly adversarial personal relationship the parties entered into a written Termination Agreement on April 19, 2010. 5. There was no dispute that in accordance with the terms of the written Termination Agreement, the Respondent gave the Complainant a check for the sum of $4,872.75. 6. Credible testimony and evidence established that the Complainant attempted to negotiate the check at the Respondent’s bank on April 19, 2010, and was unable to cash the check. 7. The Complainant then abrogated the Termination Agreement and filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 26, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. The Corrective Work Order provides, in pertinent part, as follows: Item # [1]. The work performed on the swale and culverts that run under the residence does not appear to require a permit per the local building Dept. [H]owever the result of this work at the discharge point requires additional wripwrap [sic) to be installed. Correct by appropriate means. Issues related to the legality of a cancelation agreement, possible fines and the scope of work on the project associated with a contract with apparent (multiple changes via e-mail) could not be found to be violations by this Inspector. The contractor shall comply with permit requirements related to grading for a carport/parking area. 10. The assigned Agency Inspector testified that the riprap directed in the Corrective Work Order has been constructed and that the Respondent has complied with the permit portion of the Corrective Work Order. 11. Credible testimony and evidence established that the Respondent fully complied with the terms of the written Corrective Work Order. 12. The Complainant is dissatisfied with the construction of the new culverts under and behind her residence. 13. There was no dispute that the Respondent utilized existing rail road ties for the walls of the new culverts. 14. Credible testimony and evidence established that many of the existing rail road ties had suffered insect damage and were inappropriate to be utilized as a building material for the construction of the new culverts. 15. Credible testimony and evidence established that the new culverts as constructed by the Respondent fail to comply with applicable workmanship and industry standards and require proper correction. 16. Credible testimony and evidence established that the parties’ written agreement (Complainant’s Evidence Notebook pages 5-11) provides that the culverts are to be concrete. 17. Credible testimony and evidence established that the Respondent’s construction work on the new culverts failed to comply with the terms of the parties’ construction agreement. 18. The Respondent shall cause the new culverts to be properly corrected to comply with applicable workmanship and industry standards and the parties’ written construction agreement. 19. There was no dispute that an unlicensed entity performed excavation work on the construction project. 20. There was no dispute that the Respondent recommended that the Complainant employ the unlicensed entity to perform the excavation work on the construction project. 21. Credible testimony and evidence established that the Respondent knew, or should have known, that the unlicensed entity was not a licensed contractor within the State of Arizona. 22. Credible testimony and evidence established that the excavation work performed by the unlicensed entity failed to comply with applicable workmanship and industry standards and was not in compliance with applicable code requirements. 23. Credible testimony and evidence established that the unlicensed entity failed to obtain a required permit for the excavation work, and consequently, the unlicensed entity’s work was not inspected and approved by the local building authority. 24. Credible testimony and evidence established that the Respondent knowingly aided and abetted the unlicensed entity to avoid the state’s licensing laws in violation of applicable statute. 25. The Respondent is found to be fully responsible for the proper correction of the excavation work performed by the unlicensed entity. 26. The Respondent shall cause the excavation work performed by the unlicensed entity to be properly inspected and corrected by a properly licensed contractor. 27. Credible testimony and evidence established that during the course of construction, the parties’ personal relationship has deteriorated to the point where further personal contact between the parties involved in this matter would have an unacceptably high possibility of involving local law enforcement and should not be encouraged. 28. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Respondent’s choice to properly correct the culverts underneath and behind the Complainant’s residence and to properly inspect and correct the excavation work performed by the unlicensed entity on this construction project. 29. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned a contract or refused to perform. 30. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act. 31. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to complete a construction project or operation. 32. Notice is taken of the Respondent’s prior excellent 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) (2) (Departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (10) (Aiding or abetting an unlicensed person to evade this chapter), 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 caused a licensed contractor of the Respondent’s choice to properly correct the new culverts to comply with applicable workmanship and industry standards and the parties’ written agreement, and that the Respondent has caused a properly licensed contractor to inspect and correct the excavation work performed by the unlicensed entity on this construction project. It is further recommended that if the Respondent utilizing a properly licensed contractor of the Respondent’s choice causes the proper accomplishments 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. 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 28, 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