ALJDEC decisions subject to certification as final

2010A-308475815-ROC · Registrar of Contractors · 2011-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Chad Robert. The Respondent failed to appear. 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’s Class KA (No. 197851) License was suspended by the Registrar of Contractors for non-renewal on August 1, 2010. 2. There was no dispute that the Respondent entered into a contract with the Complainant for the Respondent to perform designated hardscape, landscape and masonry construction work on a residence located at 4441 E. Maderos Del Cuenta, Paradise Valley for the total sum of $38,000.00. 3. There was no dispute that the Respondent then performed the agreed upon hardscape, landscape and masonry work on a residence located at 4441 E. Maderos Del Cuenta, Paradise Valley, Arizona. 4. Undisputed credible testimony and evidence established that several of the bricks installed by the Respondent on the exterior fireplace and chimney of the residence at issue began to disintegrate and fall approximately fifteen (15) feet from the exterior chimney endangering the homeowner. 5. The owner of the residence at issue was extremely dissatisfied with the dangerous condition presented by the falling brick and promptly notified the Complainant of the problems with the masonry work performed by the Respondent. 6. The Complainant then performed an onsite inspection of the residence at issue and requested the Respondent to promptly return to the residence and properly correct the health and safety problems with the masonry work at the residence at issue. 7. When the Respondent refused to return to the residence and perform any of the requested corrective action the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on January 24, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the residence at issue. 9. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 10. Undisputed credible testimony and evidence established that the Respondent’s masonry work on the residence at issue failed to comply with applicable industry and workmanship standards. 11. Undisputed credible testimony and evidence established that the Respondent’s masonry work on the residence at issue was so poor as to constitute a health and safety danger to the occupants of the residence. 12. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project at issue leaving the homeowner with an unfinished and unsafe construction project. 13. Undisputed credible testimony and evidence established that the Respondent knowingly entered into a contract with a contractor not duly licensed in the required classification for the work to be performed. 14. 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. Undisputed credible testimony and evidence supported findings which establish violations by the Respondent of the charged of the provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (14) (Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person not duly licensed in the required classification, and A.R.S. § 32-1154 (A) (23) namely, A.A.C. rule R4-9-108 (Failure to take appropriate corrective action).. RECOMMENDed Order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. 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, July 6, 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