ALJDEC decisions subject to certification as final

2010A-308475073-ROC · Registrar of Contractors · 2011-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Bob McClure. 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 (No. 241086) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to obtain and install new custom kitchen cabinetry in the Complainant’s residence for the total sum of $15,632.00. 3. There was no dispute that the Complainant paid the Respondent a total of $13,000.00 during the course of construction. 4. The Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to complete the installation of the new kitchen cabinets despite her repeated requests that it do so. 5. When the Respondent failed to comply with the Complainant’s repeated requests the Complainant 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 on-site inspection and on September 22, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s kitchen cabinetry. 7. The Complainant then filed an addendum to her complaint, and the assigned Agency Inspector conducted an additional onsite inspection and on October 19, 2010, issued a second written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s kitchen cabinetry. 8. Credible testimony and evidence established that the assigned Agency Inspector observed during the additional onsite inspection that the first Corrective Work Order had not been complied with. 9. Credible testimony and evidence established that the Complainant issued an email to the Respondent on October 19, 2010, questioning whether Mr. McClure was the appropriate person to supervise the completion of the construction project. 10. Credible testimony and evidence established that on October 25, 2010, the Respondent issued an email to the Complainant suggesting that she find someone else to complete the construction project. 11. On February 11, 2011, the Registrar of Contractors issued a Notice of Amendment which amended the Complaint to include allegations of kitchen cabinet deficiencies. 12. Credible testimony and evidence, presented at hearing, established that there was no unreasonable denial of access in this matter. 13. The Respondent’s actions, in stopping work at the construction project and leaving the Complainant with an unfinished kitchen and in failing to comply with the terms of the two (2) Corrective Work Orders issued in this matter, are found to constitute an abandonment of the construction project at issue. 14. Credible testimony and evidence established that the Respondent failed to comply with the terms of the two (2) Corrective Work Orders issued in this matter. 15. Credible testimony and evidence established that the Respondent construction work on the Complainant’s kitchen cabinetry was very poor and failed to comply with applicable workmanship and industry standards. 16. Credible testimony and evidence established that Respondent’s construction work on the Complainant’s kitchen cabinetry failed to comply with applicable plans and specifications. 17. Credible testimony and evidence established that when the Respondent failed to comply the terms of the two Corrective Work Orders issued in this matter and failed to return to her residence to properly complete the construction project at issue, the Complainant retained an alternative licensed contractor to fully comply with the terms of the two (2) Corrective Work Orders and properly correct and complete the installation of the Complainant’s kitchen cabinetry for the sum of $12,584.25. 18. Credible testimony and evidence established that kitchen cabinet installation is now complete and that no further corrective action is required. 19. The Complainant’s actions, in retaining an alternative licensed contractor to correct the Respondent’s construction work and to properly complete the construction project so that she could utilize the kitchen in her residence, are found to be reasonable and justified under the circumstances. 20. Credible testimony and evidence established that the total of $12,584.25 that the Complainant paid the alternative licensed contractor to correct and complete the installation of the kitchen cabinets in her residence was reasonable and justified under the circumstances. 21. 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. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A)(1) (Abandonment), A.R.S. § 32-1154 (A)(2) (Departure from or disregard of plans or specifications), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), A.A.C., namely, rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) 5. A.R.S. § 32-1156.01 provides as follows; After a hearing pursuant to this article, 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, 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 paid the Complainant the sum of $12,584.25 as restitution for the Complainant’s costs of causing an alternative licensed contractor to correct and complete the Respondent’s construction work on the kitchen cabinets in the Complainant’s residence.. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, 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 $600.00 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, June 27, 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