ALJDEC decisions subject to certification as final

2010A-308474312-ROC · Registrar of Contractors · 2011-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Jim Barnes. 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 C-31 (No. 135279) 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 Respondent to raise the height of the Complainant’s existing exterior block wall to six feet, install a double brick archway, and to construct a forty six foot long six foot high wall extension for the sum of $4,525.00. 3. There was no dispute that the Complainant was fully paid for his construction work on the Complainant’s residence. 4. Credible testimony and evidence established that when the Respondent finished the construction of the agreed upon construction work, the Complainant requested that the height of the wall be increased to over seven feet in height. 5. Credible testimony and evidence established that the Respondent was fully aware of the fact that the local building authority required that all such walls above six feet in height must have appropriate engineering plans and specifications and that an appropriate permit must be obtained from the local building authority before construction of the wall. 6. There was no dispute that despite this knowledge, the Respondent increased the height of the Complainant’s walls to well over six feet. 7. Credible testimony and evidence established that the Respondent performed the extra work in increasing the height of the Complainant’s walls at no extra cost to the Complainant as a good will gesture. 8. Credible testimony and evidence established that the Respondent knowingly violated local building codes at the request of the Complainant in violation of applicable workmanship and industry standards. 9. The fact that the local building code was violated at the request of the homeowner is not found to be a mitigating factor in this matter. 10. Credible testimony and evidence established that the licensed Respondent is responsible to perform its construction work in a professional and workmanlike manner and to comply with all applicable building codes regardless of the desires of the homeowner involved. 11. The Respondent’s actions in knowingly performing construction work on a wall in violation of applicable building codes are found to constitute a violation of applicable workmanship and industry standards. 12. When the Respondent’s construction work on the Complainant’s wall was completed, one of the Complainant’s neighbors then complained about the construction of the wall to the local building authority. 13. The local building authority conducted an inspection of the Complainant’s wall and issued a Notice of Violation to the Complainant. 14. The Complainant then contacted the Respondent and asked what he should do in response to the Notice of Violation. 15. There was no dispute that the Respondent recommended that the Complainant try and obtain a required permit from the local building authority for construction of the existing new wall. 16. There was no dispute that the Complainant then paid $95.00 in permit fees to the local building authority to try and obtain approval for the Respondent’s construction work that was performed on the Complainant’s wall. 17. When the Complainant was unable to obtain the required approval for the construction of the new wall, the Complainant informed the Respondent that the local building authority was requiring that the Complainant’s wall be promptly reduced back down to six feet in height. 18. Credible testimony and evidence established that the local building authority had informed the Complainant that a substantial fine would be imposed on the Complainant unless the height of the Complainant’s wall was promptly reduced back down to six feet in height. 19. Credible testimony and evidence established that the Respondent then informed the Complainant that the Respondent would only be willing to reduce the height of the Complainant’s wall back down to six feet in height for a negotiated fee. 20. The Complainant then contacted an alternative contractor to reduce the height of the Complainant’s wall. 21. Credible testimony and evidence established that the Complainant paid the alternative contractor the sum of $393.00 to reduce the height of the Complainant’s wall. 22. Credible testimony and evidence established that the Complainant’s actions in retaining an alternative contractor to reduce the height of the Complainant’s wall to six feet in height in order to avoid a substantial fine by the local building authority were reasonable and justified under the circumstances. 23. Credible testimony and evidence established that the cost of $393.00 to reduce the height of the Complainant’s wall to six feet in height was reasonable and justified under the circumstances. 24. The Complainant then demanded that the Respondent reimburse him for his costs of causing the alternative contractor to lower the height of the wall back down to six feet in height and for the alleged cost of materials that had to be removed from the Complainant’s fence in the sum of $272,00, the sum of $625.00 for the alleged amount of money that the Complainant paid the Respondent for the Respondent’s alleged labor costs involved in constructing the portion of the wall that had to be removed, and for the sum of $95.00 for the Complainant’s cost of trying to obtain a required permit for a wall over six feet in height. 25. When the Respondent refused to reimburse the Complainant for the alleged costs, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 26. In the formal complaint, the Complainant also alleged that there were additional workmanship problems in the construction of the wall and that the Respondent had abandoned the construction project. 27. There was no dispute that the Respondent’s construction work on the Complainant’s wall had been substantially altered by the alternative licensed contractor retained by the Complainant to reduce the height of the Complainant’s wall. 28. The credible testimony and evidence is insufficient and fails to support a finding that any additional corrective work is required on the Complainant’s wall. 29. There was no credible evidence that the Respondent abandoned the construction project at issue. 30. The Complainant’s claim for payment for the alleged cost of materials removed from the Complainant’s wall and for reimbursement for the alleged labor costs charged by the Respondent for the portion of the wall that had to be removed are found to be a claim for monetary damages which can properly be resolved in a civil court of competent jurisdiction. 31. Credible testimony and evidence established that the Respondent failed to properly display the Respondent’s license number with the acronym ROC pursuant to A.R.S. § 32-1124 (B) (Display of license). 32. A.R.S. § 32-1156.01 provides as follows: 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. 33. Notice is taken of the Respondent’s 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. It “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. The Complainant failed to sustain his burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment). 5. The credible evidence of record established violations by the Respondent of the charged provisions of 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), 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 commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the Complainant the sum of $393.00 for the Complainant’s cost of having an alternative contractor reduce the height of the Complainant’s fence to six feet and the sum of $95.00 for the Complainant’s permit costs in this matter, and that the Respondent provided the Registrar of Contractors with acceptable poof that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 B (Display of license). It is further recommended that if on or before the effective date of this Order, the Respondent properly accomplishes the above described restitutionary actions and provides acceptable proof that it is in full compliance with the applicable provisions of A.R.S. § 32-1124 B (Display of license), then the above provided License suspension shall not take place and this matter shall be closed. 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, June 10, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826