ALJDEC decisions subject to certification as final

2010A-308475596-ROC · Registrar of Contractors · 2011-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2011, at 1:00 p.m. APPEARANCES: The Complainants appeared through Mrs. Lucy Valenzuela. 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-21 (No. 201850) (Landscaping) License issued by the Registrar of Contractors. 2. Mrs. Lucy Valenzuela was added as a named Complainant without objection from the Respondent at the onset of the scheduled hearing. 3. There was no dispute that the Respondent contracted with the Complainants to construct a new block fence at the Complainants’ residence for the total sum of $13,480.00. 4. There was no dispute that the new block fence was to include a properly constructed retaining wall and two gates for the Complainants’ property. 5. There was no dispute that the Respondent knowingly represented to the Complainants that the Respondent was properly licensed to construct block fences and retaining walls. 6. There was no dispute that one of the walls for the new block fence collapsed shortly after the Respondent completed the construction of the new block fence. 7. When the block wall collapsed the Complainants discovered that the Respondent had failed to obtain a required building permit and that the new block fence had not been constructed in accordance with applicable code requirements. 8. The Complainants were dissatisfied with the Respondent’s workmanship and 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 action on the Complainants’ block fence. 10. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order. 11. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ block fence fails to comply with applicable workmanship and industry standards. 12. Credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s License. 13. Credible testimony and evidence established that the Complainants’ block fence constitutes a potential health and safety danger. 14. There was no dispute that the Respondent failed to obtain a required construction permit from the local building authority before building the block fence at issue. 15. There was no dispute that the Respondent failed to request the local building authority to perform required onsite inspections during the construction of the new block fence. 16. Credible testimony and evidence established that the local building authority has issued a Notice of Violation to the Complainants requiring the proper correction of the Complainants’ new block fence. 17. Credible testimony and evidence established that the local building authority is now requiring that a licensed structural engineer inspect the new block fence and provide an approved stamped plan for the proper correction of the Complainants’ block fence. 18. Credible testimony and evidence established that the local building authority is also requiring that the new block fence then be corrected by a properly licensed contractor in accordance with the licensed engineer’s approved plan of correction. 19. Undisputed credible testimony and evidence established that the Respondent failed to construct the Complainants’ block fence in accordance with applicable code requirements. 20. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have 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. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of any building codes), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee), 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. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that, on the effective date of the Registrar’s Order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order and the local building authorities’ Notice of Violation issued in this matter. It is further recommended that if the Respondent causes a properly licensed contractor of the Complainants’ choice to properly accomplish the above described corrective actions, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead the Respondent’s License shall be placed on twenty (20) days of active license suspension to be followed immediately by one hundred and eighty (180) days of disciplinary probation.. 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, April 19, 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