ALJDEC decisions subject to certification as final

2010A-308474392-ROC · Registrar of Contractors · 2011-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Lawrence Herring. The Respondent appeared through its authorized representative, James Gorraiz. 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. Without objection Mrs. Mary Herring was added as a named Complainant in this matter. 2. The Respondent is the holder of a Class K-21 (158731) License issued by the Registrar of Contractors. 3. This is a residential matter where the Respondent performed landscaping and flagstone work in the Complainants’ back yard. 4. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to their satisfaction despite their repeated requests that it do so. 5. When the Respondent failed to comply with the Complainant’s repeated requests, 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. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ landscaping and flagstone work failed to comply with applicable industry and workmanship standards. 9. Credible testimony and evidence established that the Respondent failed to comply with provisions of A.R.S. § 32-1124 (B) (Display of license). 10. Credible testimony and evidence established that the written agreement the parties utilized as their contract for the construction project at issue failed to contain the minimum elements of a contract as required by A.R.S. § 32-1158 (Minimum elements of a contract). 11. Credible testimony and evidence established that the Respondent placed interior flagstone on an exterior load bearing slab in violation of applicable industry and workmanship standards. 12. Credible testimony and evidence established that the placement of flagstone on a load bearing slab is beyond the scope of the Respondent’s License. 13. Credible testimony and evidence established that there was no unreasonable denial of access in this matter. 14. There was no credible testimony that the Respondent knowingly entered into a contract with a subcontractor for work to be performed that was beyond the scope of the subcontractor’s license or for work that the subcontractor was not duly licensed to perform. 15. The Registrar of Contractors normally allows a contractor an additional opportunity to correct its own construction deficiencies and errors subsequent to hearing. However, under all of the salient facts and circumstances presented herein, particularly in view of the construction work that was performed beyond the scope of the Respondent’s License, 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 Respondent cause another properly licensed contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter.

16. Notice is taken of the Respondent’s good 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. Credible testimony and evidence supported findings which establish violations of the Respondent of the charged provisions of 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. § 32-1154 (A) (13), namely, A.R.S. § 32- 1158 (Minimum elements of a contract), 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. The credible evidence or record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (14) (Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person not duly licensed in the required classification). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter 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 utilizing a properly licensed contractor of the Complainants’ choice causes the Corrective Work Order to be fully complied with and produces written proof acceptable to the Registrar that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) and the provisions A.R.S. § 32-1158, on or before the effective date of this Order, then the above provided License revocation 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 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. §32-1101A (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