ALJDEC decisions subject to certification as final

2010A-308474250-ROC · Registrar of Contractors · 2010-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Melinda Iyer. The Respondent appeared through its authorized representative, Kelly Brown. 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-3 (No. 232800) License issued by the Registrar of Contractors. 2. This is a residential matter where on January 6, 2009, the Respondent entered into a contractual agreement with the Complainants to remodel the Complainants’ existing kitchen at a cost of no more than $40,000.00 for labor and materials. 3. Credible testimony and evidence established that as an integral part of the construction contract the Respondent agreed that the kitchen remodeling project would be completed within four (4) months of the start of the kitchen remodeling project. 4. The Complainants became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly complete the kitchen remodeling project despite the fact that they had paid the Respondent over $40,000.00 and despite the fact that the construction project had been ongoing for over eleven (11) months. 5. Credible testimony and evidence established that during the course of construction the Respondent’s behavior at the jobsite became increasingly erratic and that finally the Respondent simply abandoned the construction project and refused to return. 6. When the Respondent abandoned the construction project and refused to return to their residence the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint an assigned Agency Inspector contacted the Respondent. 8. There was no dispute that the Respondent admitted to the Agency Inspector that the Respondent had abandoned the construction project. 9. Credible testimony and evidence established that the Respondent also informed the assigned Agency Inspector that the Respondent would not return to the construction project and that the Respondent was not willing to perform further work at the Complainants’ residence. 10. The Agency Inspector stated that because of the Respondent’s admitted abandonment and the Respondent’s refusal to return to the construction project no Corrective Work Order was issued. 11. The Agency Inspector testified that a Corrective Work Order would have been issued if the Respondent would have been willing to return to the Complainants’ residence and complete the construction project. 12. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s kitchen fails to comply with applicable workmanship and industry standards. 13. Credible testimony and evidence established that the Respondent’s work on the kitchen remodeling project is extremely poor and that the Complainants have received little construction work of any value for the money that they have paid to the Respondent. 14. Credible testimony and evidence established that the Respondent was contractually obligated to fabricate and install concrete countertops in the Complainants’ kitchen as part of the kitchen remodeling project. 15. There was no dispute that the Respondent failed to fabricate and install the agreed upon concrete countertops and that the Complainants at an additional expense then caused an alternative contractor to fabricate and install granite countertops for the kitchen so that the kitchen could be used by Complainants. 16. The Complainants’ actions, in causing an alternative contractor to fabricate and install granite countertops in their kitchen so that the kitchen could be used, were shown to be reasonable and justified under the circumstances. 17. Credible testimony and evidence established that the Respondent wall tile installation was so poor that it required proper removal and replacement. 18. When the Respondent refused to return and properly correct the wall tile installation the Complainants retained an alternative contractor to remove and replace the wall tile at an additional expense. 19. The Complainants’ actions, in causing an alternative contractor to remove and replace the wall tile so that they could use their kitchen, were shown to be reasonable and justified under the circumstances. 20. Credible testimony and evidence established that the Respondent lacks the professional ability to properly correct and fully complete the Complainants’ kitchen remodeling project in a professional and workmanlike manner. 21. There was no dispute that the Respondent failed to comply with the provisions of A.R.S. § 32-1154 (A) (13); Namely A.R.S. § 32-1124 (B) (Display of License). 22. 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. 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) (3); Namely Rule R4-9- 108 (Failure to perform work in a professional and workmanlike manner) and A.R.S. § 32-1154 (A) (13); Namely A.R.S. § 32-1124 (B) (Display of License). 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. 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, December 20, 2010.

/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