ALJDEC decisions subject to certification as final

2010A-308476448-ROC · Registrar of Contractors · 2011-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Ramona Tavarez. The Respondent appeared through its authorized representative, Brandon Ritchie. 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 was suspended on November 7, 2010, for lack of bond. 2. This is a commercial project where the parties entered into a construction agreement for the remodeling of the Complainant’s Learning Center located at 4826 E. Pima, Tucson, Arizona. 3. Undisputed credible testimony and evidence established that the parties’ construction agreement failed to contain the minimum elements of a contract as required by applicable statute. 4. Credible testimony and evidence established that the Respondent ran out of money before the construction project was completed. 5. Credible testimony and evidence established that Respondent then demanded that the Learning Center pay the Respondent additional money to enable the Respondent to complete construction work that the Respondent had already been paid for. 6. When the Complainant declined to pay any additional money to the Respondent until the Respondent completed the portions of the construction agreement that it had already been paid for the Respondent stopped work and abandoned the construction project. 7. When the Respondent failed to comply with the Complainant’s repeated requests to return to the Learning Center and properly complete the construction project 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 issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s learning center. 9. Undisputed credible testimony and evidence established that the Respondent failed to comply the terms of the Corrective Work Order. 10. Undisputed credible testimony and evidence established that the Respondent failed to complete the construction project at issue in a professional and workmanlike manner. 11. Undisputed credible testimony and evidence established that portions of the construction work that the Respondent did complete failed to comply with applicable industry and workmanship standards. 12. Credible testimony and evidence established that Respondent failed to comply with applicable code requirements. 13. Credible testimony and evidence established that the Respondent abandoned the construction project leaving the Complainant with an unfinished and nearly unusable commercial building. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors and of the suspended status of the Respondent’s License.

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 which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans and specifications or any building codes), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (Minimum elements of a contract), 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 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. §32-1101 A (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, May 13, 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