ALJDEC decisions subject to certification as final

2010A-308473171-ROC · Registrar of Contractors · 2011-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 14, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. 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 B-3 (No. 096821) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a garage addition and performed remodeling work on the Complainant’s residence for the total sum of $108,500.00. 3. Undisputed credible testimony and evidence established that the Complainant paid the Respondent in full for the agreed upon construction work. 4. Undisputed credible testimony and evidence established that the newly poured concrete in the Complainant’s residence began to display extensive cracking. 5. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to return to his residence and properly correct his construction work despite the Complainant’s repeated requests that he do so. 6. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on June 7, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 9. Undisputed credible testimony and evidence established that the Respondent utilized unlicensed subcontractors for the construction work on the Complainant’s residence. 10. Undisputed credible testimony and evidence established that the unlicensed subcontractors utilized by the Respondent failed to perform their construction work in a professional and workmanlike manner. 11. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainant’s residence fails to comply with applicable workmanship and industry standards. 12. Undisputed credible testimony and evidence established that the Complainant’s current cost estimate for needed corrective work on the Respondent’s construction work performed at the Complainant’s residence totals the sum of $10,940.63. 13. Undisputed credible testimony and evidence established that the Complainant has been required to pay the sum of $585.00 to have corrective work performed on the Complainant’s wood floor that was damaged as a direct result of the Respondent’s defective workmanship on the Complainant’s French doors leading to the room with the wood floor. 14. Undisputed credible testimony and evidence established that the Respondent is fully responsible for paying restitution to the Complainant for the Complainant’s cost of having the damaged wood floor properly corrected. 15. 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. Undisputed 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, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner. 5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of the Registrar’s Order unless the Registrar receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent has paid the Complainant the sum of $585.00 as restitution for the Complainant’s cost of correcting the damage to the Complainant’s wood floor that was caused by the Respondent’s poor workmanship on the Complainant’s French Doors. It is further recommended that if the Respondent properly accomplishes the above described corrective action and the above described restitutionary action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead the Respondent’s License be placed on thirty (30) days of active license suspension. 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, October 14, 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