ALJDEC decisions subject to certification as final

2010A-308474478-ROC · Registrar of Contractors · 2011-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. 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 K-39 (No.208454) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent contracted to design, construct and install a new geothermal air conditioning system for the Complainant’s residence for the total sum of $14,141.00. 3. Undisputed credible testimony and evidence established that the Complainant paid the Respondent the sum of $3,535.25 as a deposit to start the construction project. 4. Undisputed credible testimony and evidence established that on July 1, 2010, the Respondent stopped construction work on the new geothermal HVAC system and informed the Complainant that the Respondent had suspended all business operations. 5. The Complainant then made repeated unsuccessful attempts to contact the Respondent to try and persuade the Respondent to return to the Complainant’s residence and complete the construction project. 6. When the Complainant was unable to contact the Respondent, the Complainant retained an alternative licensed HVAC contractor to complete the construction of the new geothermal HVAC system. 7. The alternative HVAC contractor inspected the partially completed work performed by the Respondent and informed the Complainant that the partially completed construction work was so far below applicable workmanship and industry standards as to be valueless. 8. Undisputed credible testimony and evidence established that the Respondent’s construction work on the new geothermal air conditioning system could not be corrected to within applicable workmanship and industry standards. 9. The alternative licensed contractor then removed the partially completed construction work performed by the Respondent and designed, constructed and installed a new geothermal air conditioning system for the Complainant’s residence. 10. The Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the partially completed geothermal air conditioning system for the Complainant’s residence was so poor and so far below applicable industry standards that it appeared to have been performed by a child as part of a school science project. 12. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project without cause, leaving the Complainant with an unfinished geothermal air conditioning system. 13. Undisputed credible testimony and evidence established that the Complainant received nothing of value for the $3,535.25 that the Complainant paid the Respondent. 14. 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. 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 established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), 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 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, March 23, 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