ALJDEC decisions subject to certification as final

2010A-308473623-ROC · Registrar of Contractors · 2011-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Ionel Muresan. 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 K-64 (No.241294) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new wood floor in the Complainant’s dining room. 3. Credible testimony and evidence established that the new wood floor began to buckle within weeks of its installation. 4. The Complainant was dissatisfied with the Respondent’s workmanship in the installation of the new wood floor and with the Respondent’s failure to properly correct its work to the Complainant’s satisfaction despite the Complainant’s demand that the Respondent do so. 5. When the Respondent failed to comply with the Complainant’s demand that the Respondent properly correct the new wood floor, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on June 22, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s new wood floor. 7. The Corrective Work Order provides, in pertinent part, as follows: Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter. FAILURE TO COMPLY MAY RESULT IN THE ISSUANCE OF A CITATION, SUSPENSION AND/OR REVOCATION OF YOUR LICENSE TOGETHER WITH CIVIL PENALTIES OF UP TO $500 FOR EACH VIOLATION. Complaint # 1- Wood flooring in dining room is lifting up. Contractor to correct by the appropriate means. 8. Credible testimony and evidence established that the Respondent declined to comply with the terms of the Corrective Work Order on the alleged basis that the problems with the Complainant’s new wood floor were being caused by moisture penetrating the concrete slab beneath the floor and beyond the Respondent’s control. 9. There was no dispute that the Respondent did not install a moisture barrier between the new wood floor and the existing concrete slab. 10. Credible testimony and evidence established that the Respondent accepted the Complainant’s concrete slab as being an adequate surface for the installation of the new wood floor. 11. Credible testimony and evidence established that the Respondent informed the Complainant that the Respondent would not be complying with the terms of the Corrective Work Order and that the Complainant should retain someone else to correct the buckled wood floor. 12. Credible testimony and evidence established that the Complainant then obtained three (3) bids from licensed contractors for the proper correction of the buckled wood floor in the Complainant’s dining room. 13. Credible testimony and evidence established that the Complainant then selected the lowest bid from a licensed contractor to properly correct the buckled wood floor in the Complainant’s dining room for the total sum of $6,992.10. 14. Credible testimony and evidence established that the alternative licensed contractor then removed and replaced the buckled wood floor and the Complainant has fully paid the sum of $6,992.10 to the alternative licensed contractor for the proper correction of the buckled wood floor.

15. Credible testimony and evidence established that the sum of $6,992.10 for the proper correction of the buckled wood floor in the Complainant’s dining room was considerably less than the other two bids from licensed contractors for the directed corrective action on the buckled wood floor which were in the sum of $10,596.80 and $11,213.54. 16. No further corrective work on the Complainant’s dining room floor is required. 17. The Complainant’s actions, in obtaining three bids from properly licensed contractors and then causing the contractor with the low bid to properly correct the buckled dining room floor at a cost of $6,992.10 after the Respondent indicated that it would not comply with the terms of the Corrective Work Order, are found to be reasonable and justified under the circumstances. 18. Notice is taken of the Respondent’s prior good 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) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. A.R.S. § 32-1156.01 Restitution provides that, “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, commencing on the effective date of the Registrar’s order, the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has, as restitution, paid the sum of $6, 992.10 to the Complainant. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, 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 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