ALJDEC decisions subject to certification as final

2010A-308475009-ROC · Registrar of Contractors · 2011-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2011, and October 4, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Jana Flagler. 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-61 (No. 152935) License issued by the Registrar of Contractors. 2. There was no dispute that the Respondent erected two Rubbermaid sheds on the Complainant’s property and that the Complainant paid the Respondent the sum of $1,091.47 for the Respondent’s construction work on the two new sheds. 3. Credible testimony and evidence established that the Complainant was functioning in the capacity of an owner/builder in the construction of her new residence. 4. Credible testimony and evidence established that the Respondent performed construction work at the Complainant’s new residence. 5. Credible testimony and evidence established that the parties then became embroiled in a monetary dispute regarding the Respondent’s claim for money based upon the construction work the Respondent performed at the Complainant’s residence. 6. When the Complainant refused to pay the Respondent for his completed construction work, the Respondent filed a complaint against the Complainant with the Small Claims Court for Cochise County, State of Arizona. 7. Credible testimony and evidence established that as a result of the small claims court action, the Small Claims Court issued a civil judgment (CV20080266-SC) against the Complainant in the sum of $2,307.58 8. When the Small Claims Court refused to reconsider its Decision, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors alleging workmanship issues with the two Rubbermaid sheds that were erected by the Respondent. 9. The Complainant then filed an Addendum to her Complaint against the Respondent alleging that the Respondent had fraudulently performed construction work on her residence without her authorization. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an investigation of the Complaint at issue and moved to close the Complaint on the following basis: We are in receipt of your complaint with the Registrar of Contractors (ROC). A ROC Inspector was assigned to investigate your complaint. After investigation, the ROC has determined that:

The contractor was within the scope of work of his license, I could not determine the extent of the contractors [sic] responsibility or I lack jurisdiction.

11. The Complainant disagreed with the determination to close her complaint and requested an administrative hearing. 12. There was no dispute at the administrative hearing that the Complainant’s claims regarding workmanship and fraud in the claim at issue were not barred by the legal doctrine of res judicata. 13. Although the findings of the Small Claims Court are not res judicata regarding any findings regarding workmanship, fraud, or any of the alleged violations of A.R.S. § 32-1154 (A) asset forth in the Citation and Complaint at issue, a Small Claims Court Judgment, such as the one issued in Case No. CV20080266-SC, is a civil court money judgment and cannot be reconsidered, altered, reversed, or amended by the Registrar of Contractors. 14. Credible testimony and evidence established that the Respondent failed to utilize a written contract for his construction work on the Complainant’s sheds. 15. Credible testimony and evidence established that the Respondent failed to utilize a written contract for the Respondent’s construction work on the Complainant’s concrete piers. 16. The Respondent’s actions, in failing to utilize written construction agreements for his construction work on the Complainant’s sheds and concrete piers, are found to constitute violations of the applicable provisions of A.R.S. § 32-1158 (minimum elements of a contract). 17. Credible testimony and evidence established that the Respondent failed to comply with applicable provisions of A.R.S. § 32-1124 (B) (display of license). 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act in this matter. 19. The credible evidence of record is insufficient and fails to support a finding that the Respondent knowingly contracted beyond the cope of his license in this matter. 20. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes in this matter. 21. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship at the Complainant’s residence failed to comply with applicable workmanship and industry standards. 22. 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. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to reverse, reconsider, revise, or alter a money judgment issued by a civil court of competent jurisdiction. 5. The credible testimony and evidence of record was insufficient and failed to support a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specification or any building codes), A.R.S. § 32- 1154 (A) (7) (fraudulent act), A.R.S. § 32-1154 (A) (9) (failure to complete), A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee) as charged in the Citation and Complaint. 6. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license) and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the applicable 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 provides acceptable written proof that he has fully accomplished the above described action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that instead the Respondent’s License shall be placed on disciplinary probation for a period of twenty (20) days. 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, October 18, 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