ALJDEC decisions subject to certification as final

2010A-308476182-ROC · Registrar of Contractors · 2011-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2011, at 10:00 a.m. APPEARANCES: The Complainant appeared on her 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-42 (No. 196515) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant retained the Respondent to perform repairs to the existing roof of her residence for the sum of $5,306.40. 3. Credible testimony and evidence established that the Respondent informed the Complainant that the Respondent had properly completed the agreed upon roofing repairs and that the Complainant fully paid the Respondent for its construction work. 4. Credible testimony and evidence established that shortly after the Respondent’s construction work was completed, the Complainant experienced a major leak in the area where the Respondent had performed his construction work on her roof. 5. Credible testimony and evidence established that the roof leak allowed moisture to penetrate into the interior of the Complainant’s residence causing extensive water damage to the Complainant’s personal items. 6. The Complainant was dissatisfied with the Respondent’s workmanship and contacted the Respondent. 7. Credible testimony and evidence established that the Respondent inspected the Complainant’s roof and agreed to properly correct the roof and to turn the matter over to the Respondent’s insurance company. 8. When the Respondent’s insurance company declined to accept any responsibility for the damage to the Complainant’s residence and the Respondent failed to perform any corrective work on her roof, 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 onsite inspection and on December 6, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 10. The written Corrective Work Order provides, in pertinent part, as follows: The contractor shall take necessary and proper action to correct the damage caused by a roof leak. This damage occurred in the master bedroom closet to the ceiling, the insulation, the walls and to the personal items in the closet. The contractor shall cause a properly licensed entity to make the necessary repairs to the interior of the home. The contractor shall make reparation to the homeowner for the personal items damaged by water intrusion into the home. 11. Credible testimony and evidence established that the Respondent failed to comply with the terms of the written Corrective Work Order. 12. When the Respondent failed to comply with the terms of the written Corrective Work Order, the Complainant filed a claim with her own insurance company and retained alternative licensed contractors to perform corrective work on her roof and properly correct the interior water damage in her residence. 13. The Complainant’s actions in filing a claim with her own insurance company and retaining alternative contractors to correct the roof and the interior water damages in order to prevent further damage to her residence are found to be reasonable and justified under the circumstances. 14. No further corrective action to the Complainant’s roof or the interior of her residence was shown to be necessary. 15. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s roof failed to comply with applicable workmanship and industry standards. 16. Credible testimony and evidence established that the Respondent abandoned or refused to perform on this construction project without legal excuse for the abandonment or refusal. 17. Undisputed credible testimony and evidence established that the Complainant’s insurance deductible was the sum of $5,000.00. 18. There was no dispute that the Complainant has fully paid the $5,000.00 insurance deductible for the corrective work on her residence. 19. The Complainant now seeks restitution for the $5,000.00 that she was required to pay as an insurance deductible and payment for damages to her personal items in the sum of $15,000.00, for a total of $20,000.00 in restitution and damages. 20. The Complainant’s claim for restitution for the $5,000.00 that she was required to pay as an insurance deductible for the corrective work on her residence is found be reasonable and justified under the circumstances. 21. The Complainant’s claim for an Order requiring the Respondent to pay her $15,000.00, for damages to her clothing and other personal items is found to be a claim for money damages rather than a claim for mere restitution. 22. An adjudication of money damages is beyond the statutory authority of the Registrar of Contractors. 23. The Complainant’s claim for money damages may be resolved in a civil court of competent jurisdiction. 24. 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. Credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (1) (abandonment or refusal to perform), 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. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 5. A.R.S. § 32-1156.01 provides as follows; After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 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 paid the sum of $5,000.00 to the Complainant as restitution for her payment of the insurance deductible for needed corrective action to her residence. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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, August 24, 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