ALJDEC decisions subject to certification as final

2010A-308476272-ROC · Registrar of Contractors · 2011-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Edith L. Rudder. The Respondent appeared through its attorney, Shannon L. Giles. 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 B-3 (No. 261525) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling work on a rental residence owned by Eddie E. Rios. 3. Credible testimony and evidence established that the Respondent failed to provide the Complainants with a written construction agreement for the remodeling construction project. 4. During the course of construction, the Complainants became dissatisfied with the cost of the construction project and with the Respondent’s workmanship on the construction project. 5. When the parties were unable to resolve their differences, the Respondent filed a civil action against Mr. Eddie Rios, Mr. Eddie Rios filed a counterclaim, and the Complainants filed a Complaint against the Respondent with the Registrar of Contractors. 6. An arbitration hearing was conducted on September 29, 2011, for the parties’ civil action, and on November 11, 2011, an Arbitration Award was issued in Case No. C20110170 which found in favor of Mr. Eddie Rios and against the Respondent on claims set forth in the Respondent’s civil complaint and in favor of the Respondent and against the Mr. Eddie Rios on all claims set forth in his counterclaim in the civil action. 7. The parties’ monetary and contractual disputes have been resolved by a civil court of competent jurisdiction. 8. Credible testimony and evidence established that the Complainants retained the services of an entity identified as Old School Plumbing LLC to perform the plumbing work on the construction project at issue. 9. Credible testimony and evidence presented at hearing established that the Respondent functioned as the general contractor for the construction project at issue. 10. Credible testimony and evidence established that the Respondent accepted Old School Plumbing LLC as the plumbing subcontractor for the construction project and directed the plumbing work performed by Old School Plumbing LLC. 11. There was no dispute that the Class K-37 (No. 196468) of Old School Plumbing LLC was not in good standing during the period that it performed plumbing work on the construction project at issue and that the said license of Old School Plumbing LLC expired on July 1, 2011. 12. There was no dispute that the Respondent failed to check with the Registrar of Contractors to verify the license status of Old School Plumbing LLC. 13. Credible testimony and evidence established that the Respondent aided or abetted a licensed entity to evade the provisions of A.R.S. § 32-1154 (A). 14. There was no dispute that the Respondent failed to comply the provisions of A.R.S. § 32-1158. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications, or any building codes. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship on the construction project at issue failed to comply with applicable workmanship and industry standards. 17. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to complete a construction project for the price stated in the contract or in any modification of the contract.

18. 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). It “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). 3. The credible testimony and evidence of record was inadequate and failed to support findings that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2)(departure from or disregard of plans or specification or any building codes), A.R.S. § 32-1154 (A) (9) (failure in a material respect to complete a construction project for the price stated in contract), 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). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) (10) (aiding and abetting an licensed person to evade this chapter) and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective day the Registrar’s Order, that the Respondent’s License be actively suspended for a period of five (5) days to be followed by twenty five (25) days of disciplinary probation. 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, December 21, 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