ALJDEC decisions subject to certification as final

2010A-308476426-ROC · Registrar of Contractors · 2011-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2011, at 1:00 p.m. APPEARANCES: The Complainants appeared through Patty Morcomb. The Respondent appeared through its authorized representative, Brian Wright. 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 License (No. 192431) was administratively suspended for lack of bond on July 13, 2011. 2. This is a residential matter where the Respondent applied an epoxy/urethane coating on the concrete areas around the Complainants’ residence for the total sum of $4,600.00. 3. The Complainants were dissatisfied with the appearance of the new concrete coating and complained to the Respondent about the bubbling and peeling in the concrete coating. 4. When the Respondent failed to resolve the workmanship problems with the new concrete coating the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the new concrete coating at the Complainants’ residence. 6. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 7. Credible testimony and evidence established that the concrete coating that the Respondent installed at the Complainants’ residence fails to comply with applicable workmanship and industry standards. 8. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the Corrective Work Order issued in this matter. 9. Although the Registrar of Contractors often allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent reinstate its suspended license and then cause a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. 10. Notice is taken of the Respondent’s prior 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. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of 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). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has reinstated its suspended license and has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent provides acceptable proof that the Respondent has reinstated its license and has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter, on or before the effective date of this Order, then the above provided License revocation shall not take place and that this matter be closed. 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.

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 26, 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