ALJDEC decisions subject to certification as final

2010A-308473284-ROC · Registrar of Contractors · 2011-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, David Eisenegger. 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. 248697) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant received a construction bid from an unlicensed entity identifying itself as Development and Investments Group LLC dba Bob the Builder. 3. Credible testimony and evidence established that Mr. Robert McNulty informed the Complainant that he was a properly licensed contractor and utilized the Respondent’s license number. 4. Credible testimony and evidence established that the Complainant then checked with the Registrar of Contractors and confirmed that the Respondent was a properly licensed contractor. 5. The Complainant then accepted the bid and entered into a construction agreement with the unlicensed entity identified as Development and Investments Group LLC dba Bob the Builder. 6. There was no dispute that the agreed upon construction work was then performed at the Complainant’s residence. 7. Credible testimony and evidence established that the Respondent’s qualifying party and authorized representative, David Eisenegger, was physically present and performing construction work on the Complainant’s residence during the entire construction project. 8. Credible testimony and evidence established that the Complainant then experienced a plumbing problem with the construction work that was performed at his residence. 9. When the Complainant was unable to contact Mr. McNulty the Complainant retained a properly licensed contractor to properly correct the plumbing problem at a cost of $786.15. 10. Credible testimony and evidence established that the emergency plumbing work was necessary and that the cost of $786.15 was reasonable and justified under the circumstances. 11. Undisputed credible testimony and evidence established that the plumbing problem was caused by the construction work that was performed at the Complainant’s residence. 12. The Complainant then attempted to gain restitution for the cost of the emergency plumbing work from the Respondent. 13. When the Complainant was unable to contact Mr. McNulty the Complainant contacted the Registrar of Contractors and found a method to contact the Respondent. 14. When the Respondent denied any responsibility for the plumbing problem the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 15. The Complainant then checked with the local building authority and found that the construction of his new laundry room had not been properly permitted and that no inspections had taken place during the construction of the new laundry room. 16. The Complainant then filed an addendum to the Complaint to include the permit issue for the new laundry room and the complaint was amended to include the new item of complaint. 17. The Respondent’s owner and qualifying party, David Eisenegger, asserted that he was only an hourly employee for the Robert McNulty. 18. Credible testimony and evidence established that Mr. Eisenegger was fully aware of the fact that Mr. McNulty was not a licensed contractor during the entire time that Mr. Eisenegger was performing construction work at the Complainant’s residence. 19. Credible testimony and evidence established that the Respondent had knowingly planned on entering into a partnership with Mr. McNulty and that the partnership did not occur because the Respondent became suspicious of Mr. McNulty when he failed to pay Mr. Eisenegger and Mr. Eisenegger’s brother for their wages that were allegedly due to them for their work at the Complainant’s residence. 20. Credible testimony and evidence established that the Respondent chose its name at the suggestion of Mr. McNulty. 21. Credible testimony and evidence established that Robert McNulty utilized the Respondent’s name and license number to evade the licensing laws of the State. 22. Credible testimony and evidence established that the Respondent knew that Mr. McNulty was utilizing the Respondent’s name and license number to evade the licensing laws of the State. 23. Credible testimony and evidence established that the Respondent knowingly aided or abetted an unlicensed person to evade the licensing laws of the State. 24. Credible testimony and evidence established that the construction work that was performed on the Complainant’s residence failed to comply with applicable code requirements. 25. The Respondent is found to be fully responsible for the construction work that was performed on the Complainant’s residence including the payment of restitution for the emergency plumbing work that was performed on the Complainant’s residence and the obtaining of a required permit and any required inspections from the local building authority for the construction of the Complainant’s laundry room. . 26. 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) (2) (Departure from or disregard of building codes) and A.R.S. § 32-1154 (A) (10) (Aiding or abetting an unlicensed person to evade the provisions of this chapter). 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 commencing on the effective date of the Registrar’s Order that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has properly obtained a permit from the local building authority and passed all required inspections for the construction of the Complainant’s laundry room and that the Respondent has paid the sum of $786.15 to the Complainant as restitution for the Complainant’s emergency plumbing work that was performed at the Complainant’s residence. 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 revocation shall not take place and that this matter be closed. 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, June 22, 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