ALJDEC decisions subject to certification as final

2010A-308474383-ROC · Registrar of Contractors · 2011-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Gina Hall. 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-3 (No. 170485) License issued by the Registrar of Contractors. 2. This is a residential matter where on May 24, 2010, the Respondent entered into a written construction agreement with the Complainants to perform remodeling work on the Complainants’ existing manufactured residence for the total sum of $14,493.00. 3. During the course of construction, the Complainants became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly complete its construction work despite repeated requests that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. Undisputed credible testimony and evidence established that the Respondent failed to comply with terms of the written Corrective Work Order. 7. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainants’ residence failed to comply with applicable industry and workmanship standards. 8. Undisputed credible testimony and evidence established that the Complainants had paid the Respondent at total of $15,956.85 when the Respondent stopped work on the construction project. 9. Undisputed credible testimony and evidence established that the Complainants’ construction project was not fully completed when the Respondent stopped work on the construction project. 10. Undisputed credible testimony and evidence established that when the Respondent failed to comply with the terms of the Corrective Work Order, the Complainants utilized alternative licensed contractors to complete the construction project and comply with the terms of the Corrective Work Order at a total cost of $5,196.00. 11. Credible testimony and evidence established that the Complainants’ actions in causing the correction and completion of the Respondent’s construction work on their residence were required for the Complainants to be able to occupy and inhabit their residence. 12. Undisputed credible testimony and evidence established that the total sum of $5,196.00, for the cost of causing the terms of the Corrective Work Order to be fully complied with and causing the construction work on the Complainants’ residence to be properly completed is reasonable and justified under the circumstances. 13. There was no dispute that the construction project is now fully complete and that no further corrective or completive work on the Complainants’ residence is required. 14. Undisputed credible testimony and evidence established that the Respondent failed to obtain required construction permits in accordance with applicable building code requirements. 15. Undisputed credible testimony and evidence established that the Respondent failed to request required construction inspections by the local building authority. 16. Undisputed credible testimony and evidence established that the Respondent knowingly contracted to perform electrical work which is beyond the scope of the Respondent’s license. 17. Undisputed credible testimony and evidence established that the Respondent failed to complete the Complainants’ construction project for the price stated in the parties’ construction contract. 18. Undisputed credible testimony and evidence established that the Respondent failed to properly display its license number as required by applicable statute. 19. Undisputed credible testimony and evidence established that the parties’ written construction agreement was prepared by the Respondent. 20. Undisputed credible testimony and evidence established that the Respondent’s written construction agreement failed to contain the minimum elements of a contract as required by applicable statute. 21. Notice is taken of the Respondent’s excellent 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 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 building codes), A.R.S. § 32-1154 (A) (9) (Failure to complete a construction project for the price stated in the contract), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (Display of licensee), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the Respondent’s license), 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). 5. A.R.S. § 32-1156.01 provides that 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 revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the Complainants the sum of $5,196.00 as restitution for the Complainants’ costs of causing the terms of the Corrective Work Order to be fully complied with and the construction project on their residence to be fully completed, and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) (Display of license) and A.R.S. § 32-1158 (Minimum elements of a contract). It is further recommended that if the Respondent properly accomplishes 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 that instead the Respondent’s Class B-3 License shall be actively suspended for a period of twenty (20) days. 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. §32-1101 A (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 14, 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