ALJDEC decisions subject to certification as final

2010A-308472671-ROC · Registrar of Contractors · 2011-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Peter Nagy. The Respondent appeared through its authorized representative, James Pusztai. 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. 078489) License issued by the Registrar of Contractors. 2. This is a residential matter where in 2006 the Respondent applied a new texture coating with an integral color on the Complainants’ residence. 3. Credible testimony and evidence established that the new texture coating displayed unacceptable flaking, color fading, and cracking within weeks of its application. 4. There was no dispute that the Respondent then made repeated unsuccessful attempts to the correct the problems with the texture coating on the Complainants’ residence. 5. Credible testimony and evidence established that the Respondent performed crack repairs and applied new texture coating over the crack repairs on the Complainants’ residence on September 30, 2009. 6. There was no dispute that the new texture coating failed to match the color of the surrounding texture coating on the Complainants’ residence. 7. Credible testimony and evidence established that the Respondent agreed that the color match of the new texture coating applied over the crack repairs performed by the Respondent failed to match the surrounding texture coating on the Complainants’ residence and agreed to correct the mismatched texture coating. 8. When the Respondent failed to comply with its agreement to correct the problem with the mismatched texture coating and stopped returning the Complainants’ telephone calls, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on May 20, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 10. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 11. Undisputed credible testimony and evidence established that the integral colored texture coating applied by the Respondent on the crack repairs performed by the Respondent obviously do not match the color of the surrounding texture on the residence, leaving the Complainants with a residence that appears to be striped. 12. Undisputed credible testimony and evidence established that the mismatched texture coating on the Complainants’ residence fails to comply with applicable workmanship and industry standards. 13. Although the Registrar of Contractors often 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 lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing this 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 Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. 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). It “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). 3. Credible testimony and evidence supported findings which established that the Respondent violated 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 on the effective date of the Registrar’s Order that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent causes a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter, on or before the effective date of this Order, then the above provided License revocation shall not take place and the case shall 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. §32-1101 A (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, December 6, 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