ALJDEC decisions subject to certification as final

2010A-308473019-ROC · Registrar of Contractors · 2011-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Walter White. 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 K-8 (No.219600) License was voluntarily canceled on August 13, 2010. 2. This is a residential matter where the Respondent installed 525 square feet of Mexican Redondo floor tile in the Complainant’s residence for the total sum of $3,016.00. 3. Credible testimony and evidence established that the new tile floor deteriorated rapidly and displayed loose tiles, hollow tiles, broken tiles, chipping grout, unacceptable lippage, and irregular grout lines. 4. The Complainant was dissatisfied with the Respondent’s workmanship on the new tile floor and with the Respondent’s failure to return to her residence and properly correct its work despite her repeated requests that it do so. 5. When the Respondent failed to comply with the Complainant’s repeated requests to properly correct the new tile floor, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. There was no dispute that instead of complying with the terms of the Corrective Work Order the Respondent entered into a written Settlement Agreement with the Complainant wherein the Respondent agreed to pay the Complainant an agreed upon sum of money rather than performing the directed corrective action. 8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the parties’ Settlement Agreement and that the Complainant then abrogated the Settlement Agreement and requested an administrative hearing. 9. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 10. Credible testimony and evidence established that the Respondent’s installation work on the new tile floor in the Complainant’s residence failed to comply with applicable industry and workmanship standards. 11. Credible testimony and evidence established that the Respondent failed to comply with applicable plans, specifications and manufacturers’ recommendations when the Respondent installed the new tile floor in the Complainant’s residence. 12. Credible testimony and evidence established that the new tile floor in the Complainant’s residence has now deteriorated to the point where the entire tile floor requires proper removal and replacement. 13. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondent was advised that in the event of a finding of a violation against the Respondent, the Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against the Respondent. Said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding the Respondent. Therefore, the Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications), 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 the Respondent’s License be revoked on the effective date of this Order for Revocation. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 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, April 26, 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