ALJDEC decisions subject to certification as final

2010A-308474244-ROC · Registrar of Contractors · 2011-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Bob Mylott. 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 is the holder of a Class B (No. 216148) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling and addition work on the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and informed the Respondent of their dissatisfaction. 4. The Respondent then stopped work on the construction project and filed a lien on their residence. 5. When the Respondent failed to comply with the Complainants’ repeated requests for the Respondent to return to their residence and properly complete the construction project, the Complainants 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 onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 7. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. The assigned Agency Inspector testified that he conducted an prehearing inspection at the Complainants’ residence and that based upon new evidence presented at the prehearing inspection, he would have added corrective action for item number three (3) of the Complaint (correction to bedroom windows) and item number seven (7) of the complaint (plumbing vent piping improperly installed). 9. Undisputed credible testimony and evidence established that the bedroom windows were not installed in accordance with plans and specifications and were not installed in a workmanlike and professional manner. 10. Undisputed credible testimony and evidence established that the plumbing vent piping was not installed in a professional and workmanlike manner. 11. Undisputed credible testimony and evidence established that the written construction agreement prepared by the Respondent failed to contain the minimum elements of a contract required by A.R.S. § 32-1158 (Minimum elements of a contract). 12. Undisputed credible testimony and evidence established that the Respondent’s owner behaved in an unprofessional and intimidating manner at the Complainants’ residence. 13. 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. 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 properly licensed contractors of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter and to properly correct the bedroom windows and the plumbing vent piping. 14. Notice is taken of the Respondent’s prior good 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 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. Undisputed 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 plans and specification), 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 commencing on the effective date of the Registrar’s Order, 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 Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter and to fully correct the Complainants’ new bedroom windows and the plumbing vent piping for the Complainants’ new bathroom. It is further recommended that if the Respondent, utilizing properly licensed contractors of the Complainants’ choice, causes the full 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 this matter shall 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, April 4, 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