ALJDEC decisions subject to certification as final

2010A-308472622-ROC · Registrar of Contractors · 2011-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Matthew Pierce. The Respondent appeared through its authorized representative, Travis Breinholt. 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 The Respondent’s Class KB-1 (No. 194156) License was revoked on January 19, 2010. 2. Credible testimony and evidence established that the parties entered into a construction agreement for the Respondent to construct a swimming pool and perform agreed upon hardscaping and landscaping work at the Complainant’s residence for the total sum of $78,292.00. 3. There was no dispute that the Respondent began work on the construction project and that the Complainant paid the Respondent a total of $27,525.13 in accordance with the terms of the parties’ construction agreement. 4. Undisputed credible testimony and evidence established that the Respondent kept working on the Complainant’s construction project and soliciting and accepting money from the Complainant after the Respondent’s License was revoked on January 19, 2010. 5. When the Complainant discovered that the Respondent’s License had been revoked the Respondent abandoned the construction project. 6. When the Respondent abandoned the construction project and refused to return the money that the Complainant had paid the Respondent for construction work performed after January 19, 2010, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. On January 20, 2011, the Complainant amended his formal Complainant against the Respondent to include allegations of poor workmanship in the construction of the retaining walls constructed by the Respondent. 8. Credible testimony and evidence established that the Respondent abandoned the Complainant’s construction project leaving the Complainant with an unfinished construction project which now requires extensive corrective work before the construction project can be completed. 9. Credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications and applicable building code requirements in its construction work at the Complainant’s residence. 10. Credible testimony and evidence established that the Respondent knowingly contracted with the Complainant to perform construction work beyond the scope of the Respondent’s License. 11. Credible testimony and evidence established that the Respondent’s workmanship at the Complainant’s residence failed to comply with applicable code requirements. 12. Credible testimony and evidence established that the Respondent’s workmanship at the Complainant’s residence failed to comply with applicable workmanship and industry standards. 13. Credible testimony and evidence established that the Respondent failed to complete the construction project at the Complainant’s residence for the price stated in the parties’ construction agreement. 14. Credible testimony and evidence established that the Complainant received no value for the money that the Complainant paid the Respondent in this matter. 15. Credible testimony and evidence established that the Respondent failed to properly display its license number pursuant to A.R.S. § 32-1124 B.

16. Notice is taken of the Respondent’s poor 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 establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of building codes), A.R.S. § 32-1154 (A) (9) (Failure in a material respect to complete a construction project or operation for prices stated in the contract), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond scope of license), 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 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, June 8, 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