ALJDEC decisions subject to certification as final

2010A-308475528-ROC · Registrar of Contractors · 2011-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2011 APPEARANCES: Cynthia Collins for Complainants; No one appeared for Respondents ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented is whether Respondent The Fountain Source LLC (License No. 259183) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent, The Fountain Source LLC holds License No. 259183, a Class K-5 contracting license issued by the Registrar of Contractors (“ROC”). Respondent’s license is limited to work on fountains and ponds. Complainants are Helen Collins and her daughter Cynthia Collins. Helen Collins has a residence located in Sun City, Arizona. Helen Collins entered two contracts with Respondent. The first contract called for Respondent to remove an existing fountain at the residence and replace it with a new fountain. See Exhibit 2. The second contract called for Respondent to install a synthetic lawn at the residence. See Exhibit 3. On August 30, 2010, Complainants filed Complaint No. [number redacted] alleging defects in workmanship and other violations of the State’s contracting laws. ROC assigned Rick Oelke to investigate the Complaint. On September 10, 2010, Mr. Oelke conducted an inspection at the residence. On September 10, 2010, Mr. Oelke determined that the fountain was not safe and did not meet the minimum workmanship standards. Mr. Oelke could not verify that Respondent was responsible for the condition of the fountain because Helen Collins had hired someone other than Respondent to work on the fountain after Respondent completed its work. Cynthia Collins acknowledges that someone other than Respondent has worked on the fountain and that there is no way to determine who is responsible for the current condition of the fountain. On September 10, 2010, Mr. Oelke determined that the synthetic lawn was not properly installed and it did not meet the minimum workmanship standards. Mr. Oelke did not issue a corrective work order with respect to the synthetic lawn because Respondent is not licensed to install synthetic lawns. On October 26, 2010, ROC issued a Citation and Complaint alleging that Respondent may have violated A.R.S. §§ 32-1154(A)(2), (A)(3), (A)(13), and (A)(17). On January 17, 2011, ROC issued a Notice of Hearing setting the matter for 8:00 a.m. March 4, 2011. No representative appeared for Respondent and the matter was convened in Respondent’s absence at about 8:25 a.m. Respondent was provided proper notice of the hearing. Mr. Oelke provided credible testimony that the synthetic lawn installed by Respondent at Helen Collins’s residence did not meet the minimum workmanship standards. Mr. Oelke provided credible testimony that the contracts Respondent entered into with Helen Collins did not meet the statutory requirements because the contracts did not include the start or stop dates, or information about the dates on which payments were due. Cynthia Collins provided credible testimony that her mother had paid Respondents approximately $11,107 for work at her residence. Cynthia Collins provided credible testimony that Respondent’s representative, Gordon Rose had taken a folder of hers that contained personal information, and that Respondents had not promptly returned that folder. Complainants requested restitution in the amount of $10,958 and that Respondent’s license be revoked. CONCLUSIONS OF LAW Complainants bear the burden of proof to show that the alleged violations have occurred. The standard of proof on all issues in this matter is that of a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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 (6th ed. 1990). The preponderance of the evidence shows that Respondents were properly notified of the hearing in this matter. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(3) because the synthetic lawn Respondent installed did not meet the minimum workmanship standards in violation of A.A.C. R4-9-108. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(13) because Respondent’s contracts with Helen Collins do not comply with the requirements of A.R.S. § 32-1158. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(17) because Respondent installed a synthetic lawn at Helen Collins’s residence, which is beyond the scope of Respondent’s license. There is not sufficient evidence to show that Respondent’s work on the fountain violated A.R.S. § 32-1154(A)(2) or (A)(3). There is not sufficient evidence to show that Respondent’s installation of the synthetic lawn violated A.R.S. § 32-1154(A)(2). Respondent’s failure to appear at the hearing is considered a factor in aggravation that demonstrates that Respondent is not amenable to ROC’s oversight and regulation. Based on the evidence of record, Respondent, The Fountain Source LLC’s Class K-5 license number 259183 should be revoked. See A.R.S. § 32-1154. Although Complainants are requesting restitution of $10,958, the evidence of record does not support such an award because: (1) a portion of that amount was for work related to the fountain and the evidence does not show that Respondent is responsible for the poor workmanship related to the fountain; and (2) Complainants have not presented sufficient evidence to quantify their damages related to the synthetic lawn. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the Order issued in this matter, The Fountain Source LLC’s Class K-5 License No. 259183 is revoked. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the order shall be 40 days from the date of that certification.

Done this day, March 23, 2011.

/s/ Thomas Shedden Thomas Shedden 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