ALJDEC decisions subject to certification as final

2010A-308473578-ROC · Registrar of Contractors · 2011-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 23, 2011 at 9:00 a.m. APPEARANCES: The Complainants appeared through Lowenid Reinhart. 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’s Class B-3 (No.234328) License was suspended on February 18, 2011, for lack of bond. 2. This is a residential matter where the Respondent entered into a written construction agreement with the Complainants to perform remodeling work on the Complainants’ residence and to construct an addition to the Complainants’ residence for the total sum of $53,000.00. 3. There was no dispute that the Complainants paid the Respondent the sum of $26,500.00 as a deposit when the construction agreement was signed by the parties. 4. Undisputed credible testimony and evidence established that the Respondent failed to obtain a required permit to construct the new room addition. 5. Undisputed credible testimony and evidence established that the Complainants questioned the Respondent about the necessity of a building permit for the construction project and that the Respondent informed the Complainants that if the local building authority noticed the construction project and issued a violation, then the Respondent would obtain the required building permit. 6. During the course of construction, the Complainants became increasingly dissatisfied with the Respondent’s workmanship in the remodeling project and with the Respondent’s inability to correct its workmanship to within applicable workmanship and industry standards. 7. When the Respondent stopped trying to correct its workmanship errors and abandoned the construction project, the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence and to properly to complete the construction project. 9. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 10. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainants’ residence is so poor as to require complete removal and replacement rather than correction. 11. Undisputed credible testimony and evidence established that the Complainants received no value for the money that they paid the Respondent. 12. There was no dispute that the Respondent failed to perform any work on the room addition to the Complainant’s residence. 13. Undisputed credible testimony and evidence established that the Respondent failed to deliver any plans for the room addition to the Complainants. 14. Undisputed credible testimony and evidence established that the Respondent knowingly departed from or disregarded applicable building codes. 15. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project without legal excuse for the abandonment. 16. Undisputed credible testimony and evidence established that the Respondent acted in the capacity of a contractor under a name other than the name on its license. 17. Undisputed credible testimony and evidence established the Respondent failed to properly display the Respondent’s license number in its written construction agreement with the Complainants. 18. 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 lives of these homeowners. 19. Notice is taken of the Respondent’s poor prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that 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) (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. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (15) (Acting in the capacity of a contractor in a name other than as set forth upon the license), A.R.S. § 32-2254 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. 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, February 23, 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