ALJDEC decisions subject to certification as final

2010A-308472788-ROC · Registrar of Contractors · 2011-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Keith McCulloch. 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. 216788) License issued by the Registrar of Contractors. 2. On August 25, 2009, the same parties appeared for an administrative hearing for Docket No. 09F-2042-ROC. 3. After the onset of the scheduled hearing in Docket No. 09F-2042-ROC the parties reached a Settlement Agreement. 4. Pursuant to the terms of the parties’ Settlement Agreement the Respondent agreed to apply primer and paint all of the fascia boards on the Complainant’s residence and the Complainant agreed to withdraw his complaint. 5. The matter was then referred back to the Registrar of Contractors with an Order Recommending Closure Due to Settlement. 6. Credible testimony and evidence established that the Respondent did apply primer and paint all of the fascia boards on the Complainant’s residence. 7. A review of the record in Docket No. 09F-2042-ROC establishes that proper preparation of the Complainant’s fascia was an intrinsic part of the parties’ Settlement Agreement. 8. Credible testimony and evidence established that approximately nine (9) months after completion, the new painting on the Complainant’s fascia boards and shingle molding began to flake and peel. 9. The Complainant notified the Respondent of the problem with the peeling and flaking paint on the fascia boards and shingle molding of his residence and demanded proper corrective action. 10. When the Respondent failed to comply with the Complainant’s demand for proper correction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 12. The written Corrective Work Order provides, in pertinent part, as follows: “Contractor to correct all exterior paint peeling and or bubbling where necessary by appropriate means, especially along the bottom of the shingle mold.” 13. The Respondent declined to comply with the terms of the Corrective Work Order on the basis that the shingle molding and fascia boards were deteriorating. 14. The Respondent asserts that correcting paint on the deteriorating wood fascia boards and shingle molding would be pointless. 15. Credible testimony and evidence presented at hearing established that the Respondent accepted the wood fascia boards and shingle mold as being an acceptable surface when the Respondent applied primer and paint to the Complainant’s wood fascia boards and shingle molding. 16. Credible testimony and evidence established that the paint on the Complainant’s fascia boards and shingle molding has failed and requires proper correction in order to comply with applicable workmanship and industry standards. 17. The Respondent is found to be fully responsible for the proper correction of the unacceptable paint peeling and paint flaking on the on the fascia boards and shingle molding of the Complainant’s residence. 18. Credible testimony and evidence established that these two parties have been involved in multiple complaints with several different hearings and that during the course of construction and repeated complaints the parties have developed an adversarial personal relationship which presents an unacceptably high risk of a personal confrontation at an unsupervised construction site. 19. 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 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 to fully comply with the terms of the Corrective Work Order issued in this matter..

20. Notice is taken of the Respondent’s 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 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, rule A.A.C. 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 properly licensed contractor of the Respondent’s choice to fully comply with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent, utilizing a properly licensed contractor, causes the proper accomplishment of 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 the matter 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, February 4, 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