ALJDEC decisions subject to certification as final

2010A-308473027-ROC · Registrar of Contractors · 2011-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Chad Carney. 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-11 (No. 224797) License issued by the Registrar of Contractors. 2. There was no dispute that the Respondent installed several video cameras and a DVR for an exterior video surveillance system in the Complainant’s residence for the total sum of $3,283.67. 3. The Complainant was dissatisfied with the operation of the new video surveillance system and repeatedly complained to the Respondent. 4. When the Respondent was unable to resolve the problems with the surveillance system to the Complainant’s satisfaction, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors 5. 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 new video surveillance system. 6. Credible testimony and evidence established that the Respondent did perform some corrective work on the video surveillance system. However, the Complainant was still dissatisfied with the operation of the surveillance system. 7. The assigned Agency Inspector conducted a prehearing inspection prior to the hearing. The assigned Agency Inspector found that the visual quality of the surveillance system was still unacceptable and that one of the new cameras installed by the Respondent had failed and gone out of operation. 8. Credible testimony and evidence established that the Respondent has failed to fully comply with the terms of the Corrective Work Order issued in this matter. 9. Credible testimony and evidence established that the visual quality of the new surveillance system fails to comply with applicable workmanship and industry standards. 10. Credible testimony and evidence established that one of the new cameras in the new surveillance system went out of operation during the warranty period for the new camera. 11. The Respondent agreed to replace the inoperable camera. 12. During the course of construction the personal relationship between the parties has deteriorated rapidly and both parties have repeatedly attempted to utilize Registrar of Contractors personnel as intermediaries between them. This is not an appropriate agency function. The parties are all adults and are fully capable of scheduling appropriate onsite corrective work. 13. Although Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the new surveillance system are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 14. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity after a hearing to correct any determined deficiencies in his work. 15. During the course of the instant hearing, the Complainant attempted to raise a new issue regarding an infrared system that was not set forth in the filed complaint and that has not been inspected by the assigned Agency Inspector. Based on basic principles of due process under the law, this new issue was disallowed for consideration at this hearing. Nevertheless, nothing in this ruling would serve to prevent the Complainant from filing a new complaint with the Registrar of Contractors regarding the new issue of the infrared system. 16. There was no credible evidence that the Respondent departed from or disregarded plans, specifications or any building codes. 17. 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. The credible evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes). 5. Credible testimony and evidence supported findings which established 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 R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms and conditions of the written Corrective Work Order issued in this matter and has replaced the inoperable camera. It is further recommended that if the Respondent properly accomplishes 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 this matter will be closed. 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, March 16, 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