ALJDEC decisions subject to certification as final

2010A-308473309-ROC · Registrar of Contractors · 2011-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 8, 2011, at 10:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Clyde P. Halstead. The Respondent appeared through its authorized representative, Bryce Campo. 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-5 (No. 179489) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant for the construction of a large swimming pool with multiple water features, a covered poolside kitchen area, a free standing Ramada, a pump house, and several hardscape and planter areas for the sum of $406,260.70. 3. Credible testimony and evidence established that the parties entered into a change order to tile the swimming pool for the sum of $10,187.83, for a total project cost of $416,448.53. 4. Credible testimony and evidence established that the Respondent demanded additional money or the Respondent would stop work and abandon the construction project. 5. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s progress on the construction project and declined to pay any additional monies to the Respondent until the construction project was completed. 6. Credible testimony and evidence established that the Respondent then abandoned the construction project leaving the Complainant with an unfinished construction project. 7. Credible testimony and evidence established that the Complainant had paid the total sum of $389,397.70 to the Respondent at the time of the Respondent’s abandonment. 8. When the Respondent abandoned the construction project and refused to return, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on July 2, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective action on the Complainant’s residence. 10. Credible testimony and evidence established that due to the large number of items on the Corrective Work Order, the assigned Agency Inspector gave the Respondent thirty (30) days to complete the directed corrective action rather than the standard fifteen (15) days. 11. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 12. Credible testimony and evidence established that the written document furnished by the Respondent that was utilized as the written construction agreement between the parties failed to contain the minimum elements of a contract as required in A.R.S. § 32-1158 (A). 13. Credible testimony and evidence established that the Respondent failed to obtain required construction permits before starting the construction project. 14. Credible testimony and evidence established that all of the construction completed by the Respondent was done without required construction permits and without required inspections by the local building authority. 15. Credible testimony and evidence established that required construction permits must be obtained and required inspections must be performed by the local building authority or the construction work performed by the Respondent must be demolished. 16. Credible testimony and evidence established that most of the construction work completed by the Respondent must undergo destructive testing by properly licensed contractors to prepare “as built” plans required by the local building authority. 17. Credible testimony and evidence established that the Respondent knowingly performed construction work, including electrical and plumbing work, beyond the scope of the Respondent’s License. 18. Credible testimony and evidence established that the Respondent abandoned the construction project without legal excuse. 19. Credible testimony and evidence established that the Respondent departed from or disregarded applicable building codes. 20. Credible testimony and evidence established that the Respondent failed to perform its construction work in a professional and workmanlike manner. 21. Although the Registrar of Contractors often 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 Respondent cause properly licensed contractors of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 22. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A)(1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of building codes), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1158 (Minimum elements of a contract), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond scope of license), 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 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 caused properly licensed contractors of the Complainant’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent, utilizing properly licensed contractors of the Complainant’s choice, causes the properly accomplishment of 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 instead the Respondent’s License shall be placed on twenty (20) days active suspension followed by one hundred and twenty (120) days of disciplinary probation. It is further recommended, in addition to the above-provided penalties, if any, that 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, March 21, 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