ALJDEC decisions subject to certification as final

2010A-308473209-ROC · Registrar of Contractors · 2011-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2011 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Saul Herrera. 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-48 (No. 125683) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written construction agreement wherein the Respondent agreed to install approximately 1100 square feet of marble tile in the Complainant’s residence for $2.75 per square foot. 3. There was no dispute that the parties’ written agreement was prepared by the Respondent. 4. Credible testimony and evidence established that the parties’ written construction agreement failed to contain the minimum elements of a contract as required in A.R.S. § 32-1158. 5. Credible testimony and evidence established that the written agreement prepared by the Respondent and the Respondent’s business card utilized by the Respondent failed to contain the Respondent’s license number preceded by the ROC acronym as required in A.R.S. § 32-1124.B. 6. Credible testimony and evidence established that the Respondent completed the installation of the agreed upon marble floor tile at approximately eleven p.m., and that the Complainant’s wife then visually inspected and approved the floor installation under artificial light conditions. 7. The next morning the Complainant and the Complainant’s wife inspected the completed floor tile installation under daylight conditions and discovered numerous workmanship deficiencies in the floor tile installation. 8. The Complainant was dissatisfied with the Respondent’s workmanship and notified the Respondent of his complaints about the Respondent’s unsatisfactory workmanship. 9. Credible testimony and evidence established that the Respondent has returned to the Complainant’s residence and tried to correct the deficiencies in the tile floor installation on several different occasions. 10. Credible testimony and evidence established that the Respondent was unable to properly correct the problems with the new tile floor despite being given repeated opportunities to do so. 11. When the Respondent was unable to resolve the workmanship deficiencies in the new tile floor to his satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 13. Credible testimony and evidence established that the Respondent failed to respond to the Corrective Work Order within the fifteen (15) period set forth in the Corrective Work Order. 14. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 15. Credible testimony and evidence established that the Respondent failed to perform its floor tile installation work in a professional and workmanlike manner and that the Complainant’s new tile floor requires extensive corrective action in order to bring the new tile floor within applicable industry and workmanship standards. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that there was an unreasonable denial of access in this matter. 17. Credible testimony and evidence presented at hearing established that during the course of construction and attempted corrective work on the new tile floor, the parties have developed an acrimonious personal relationship. 18. Credible testimony and evidence established that any further unsupervised personal contact between the parties would likely lead to a personal confrontation at the jobsite, rather than the performance of needed corrective action on the Complainant’s tile floor. 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 any 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. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the installation of the new tile floor in his home 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. In this regard, the licensed contractor selected by the Respondent must be given a reasonable opportunity to complete necessary remedial work in order to fully comply with the terms of the Corrective Work Order issued in this matter. 21. Notice is taken of the Respondent’s good 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)(13), namely A.R.S. § 32-1124 (B), A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, A.R.S. § 32-1154 (A) (3), namely, A.A.C. R4-9- 108 (Failure to perform work in a professional and workmanlike manner), and A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action). 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 caused a properly licensed contractor to fully comply with the terms of the Corrective Work Order issued in this matter and that the Respondent has properly corrected all of the Respondent’s business documents, including all contracts and business cards, so that all the Respondent’s business documents fully comply with all applicable statutory requirements. It is further recommended that if the Respondent causes the proper accomplishment of the above described corrective actions, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter 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. §32-1101A (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, January 28, 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