ALJDEC decisions subject to certification as final

2010A-308475035-ROC · Registrar of Contractors · 2011-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Josh Shaw. 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-21 (No. 247108) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent contracted to install an in-ground irrigation system at the Complainant’s residence for the sum of $1,100.00. 3. Credible testimony and evidence established that during the course of construction, the parties became embroiled in a monetary dispute, and the Respondent stopped work on the construction project and declined to perform further construction work until the financial dispute was resolved to the Respondent’s satisfaction. 4. Credible testimony and evidence established that the new in-ground irrigation system leaked and was incapable of fulfilling its intended function of providing water to the Complainant’s plants. 5. Credible testimony and evidence established that the Complainant repeatedly notified the Respondent of the problems with the new in-ground irrigation system and the Respondent failed to resolve the problems with the new irrigation system. 6. When the Respondent failed to return to the Complainant’s residence and resolve the problems with the new irrigation system, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on September 21, 2010, issued a written Corrective Work Order directing the Respondent either return its license to a valid status and then fully perform the designation corrective action set forth in the Corrective Work Order or resolve the Complaint in a financial manner. 8. There was no dispute that the Respondent’s License was suspended for non- renewal from August 2, 2010, through November 10, 2010. 9. Credible testimony and evidence established that the Respondent did not attempt to reach a financial resolution with the Complainant. 10. Credible testimony and evidence established that the Respondent has continued to decline to return to the Complainant’s residence and comply with the terms of the Corrective Work Order despite the fact that the Respondent’s License has been restored to a valid status. 11. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s in-ground irrigation system fails to comply with applicable workmanship and industry standards and that the in- ground irrigation system requires proper repair or replacement. 12. Credible testimony and evidence established that Respondent knowingly performed plumbing work beyond the scope of the Respondent’s Class License. 13. Credible testimony and evidence established that the plumbing work performed by the Respondent failed to comply with applicable industry and workmanship standards. 14. Credible testimony and evidence established that the Respondent departed from or disregarded applicable plans and specifications in the installation of the in-ground irrigations system. 15. Notice is taken of the Respondent’s excellent 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. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications), 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) (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). 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 terms of the written Corrective Work Order issued in this matter, including causing a properly licensed plumbing contractor to fully correct the plumbing work performed by the Respondent. It is further recommended that if the Respondent properly accomplishes the above described corrective action, including causing a properly licensed plumbing contractor to correct the Respondent’s plumbing work, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall 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, March 21, 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