ALJDEC decisions subject to certification as final

2010A-308475245-ROC · Registrar of Contractors · 2011-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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-30 (No. 217251) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent removed an existing leaking shower from the Complainant’s residence and replaced it with a new shower for the sum of $2,000.00. 3. The parties were in dispute regarding whether there was a written construction agreement or an oral construction agreement. 4. Credible testimony and evidence established that the Respondent sent the Complainant a written email memorializing the terms of the parties’ oral construction agreement. 5. The Respondent’s email is found to constitute the parties’ written construction agreement. 6. Credible testimony and evidence established that the Respondent failed to comply with the applicable provisions of A.R.S. § 32-1124(B) (Display of license). 7. After the new shower was completed, the Complainant discovered that the new shower leaked and demanded that the Respondent return to his residence and properly correct the water leakage in the new shower. 8. When the Respondent was unable to resolve the water leaking problem despite repeated repair attempts, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Credible testimony and evidence established that the formal Complaint was filed within two (2) years of the Respondent’s last attempt to correct the water leakage in the new shower. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted several on-site inspections. On the last onsite inspection, he observed that the new shower was leaking and that the water leakage from the new shower was damaging the surrounding areas in the residence. 11. On September 30, 2010, the assigned Agency Inspector issued a written Corrective Work Order directing the Respondent to determine the cause of the shower leakage and to correct the problem by appropriate means, including all damages caused by the shower leaking. 12. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 13. Credible testimony and evidence established that during the course of construction and repeated repair attempts the parties have developed a very strained and distrustful personal relationship. 14. Credible testimony and evidence established that the new shower in the Complainant’s residence does leak and that the leaking shower has caused water damage, including mold, to the surrounding area of the residence. 15. Credible testimony and evidence established that the Respondent is fully responsible for the proper correction of the leaking shower and all water damage, including mold, caused by the leaking shower. 16. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor of the Respondent’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 17. 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 establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (23) (Failure to take appropriate corrective action), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license), 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, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124(B).. It is further recommended that if the Respondent utilizing a properly licensed contractor of the Respondent’s choice causes the terms of the Corrective Work Order to be fully complied with and provides acceptable written proof of compliance with the provisions of A.R.S. § 32-1124 (B), on or before the effective date of this Order, then the above provided license suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $200.00 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 15, 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