ALJDEC decisions subject to certification as final

2010A-308475158-ROC · Registrar of Contractors · 2011-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, James Rogel. The Respondent appeared through its authorized representative, Frank Nickle. 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 C-5 (No. 168150) License issued by the Registrar of Contractors. 2. The parties entered into a written construction agreement for the Respondent to apply an architectural concrete finish to the floors of a residence located at 14251 N. 183rd Avenue, Surprise, Arizona 85388. 3. Undisputed credible testimony and evidence established that the parties’ written construction agreement was prepared by the Respondent. 4. Undisputed credible testimony and evidence established that the Respondent’s written construction agreement failed to contain the minimum elements of a contract as provided in A.R.S. § 32-1158. 5. Credible testimony and evidence established that pursuant to the terms of the written construction agreement, the Respondent agreed to apply an architectural concrete finish to the floors of the residence at issue for the total sum of $10,500.00. 6. There was no dispute that the Complainant paid the Respondent $5,250.00 as a down payment or deposit at the onset of the construction project. 7. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and repeatedly complained to the Respondent about the poor appearance of the new concrete finish. 8. When the Respondent demonstrated that it was apparently unable to correct its work to the Complainant’s satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the residence at issue. 10. Credible testimony and evidence established that the Respondent’s construction work on the architectural concrete finish for the residence at issue failed to comply with applicable industry and workmanship standards. 11. Credible testimony and evidence established that on three separate occasions, the Respondent attempted to gain access to the residence at issue so that the Respondent could attempt to comply with the terms of the Corrective Work Order. 12. Undisputed credible testimony and evidence established that on each of the three separate occasions, the Complainant denied access to the Respondent. 13. The Complainant’s actions in repeatedly denying access to the Respondent are found to be unreasonable and to constitute a denial of access. 14. There was no dispute that the Complainant has now caused the Respondent’s construction work on the architectural concrete finish to be removed and replaced by an alternative licensed contractor. 15. There was no dispute that no further corrective work on the architectural concrete floor finish application is required. 16. The Complainant now seeks restitution for its costs in causing another licensed contractor to remove and replace the Respondent’s construction work. 17. The Respondent seeks the remaining sum of $5,250.00 due under the terms of the parties’ construction agreement. 18. The parties’ monetary dispute is found to constitute a good faith monetary dispute between the parties which will necessarily involve a monetary adjudication and can be resolved in a civil court of competent jurisdiction. 19. Notice is taken of the Respondent’s good 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. No violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action) is supportable due to the unreasonable denial of access in this matter. 5. Credible testimony and evidence supported findings that establish that the Respondent violated the charged provisions of 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) 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 is in full compliance with the provisions of A.R.S. § 32-1158. It is further recommended that if the Respondent properly accomplishes the above described corrective 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 ninety (90) days of disciplinary probation. 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 25, 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