ALJDEC decisions subject to certification as final

2010A-308476600-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Robert Panter. 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 KB-2 (No. 245496) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to perform an extensive remodeling construction project for a rental property purchased by the Complainant and the Complainant’s brother. 3. During the course of construction the Complainant became increasingly dissatisfied with the Respondent’s workmanship. 4. Credible testimony and evidence established that the Complainant repeatedly informed the Respondent of his dissatisfaction and that the Respondent failed to respond to the Complainant’s repeated complaints. 5. When the Respondent failed to comply with the Complainant’s repeated requests for corrective action the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection on November 23, 2010, and issued a lengthy written Corrective Work Order on November 29, 2010, directing the Respondent to perform designated corrective work on the residence at issue. 7. The assigned Agency Inspector testified that he performed a prehearing inspection on June 6, 2011, and found that the Respondent had failed to fully comply with the terms of the Corrective Work Order. 8. Credible testimony and evidence established that the Respondent’s workmanship on the residence at issue failed to comply with applicable workmanship and industry standards. 9. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 10. Credible testimony and evidence established that the Respondent agreed to construct and install a pull-out cabinet for a narrow closet in bedroom number two of the Complainant’s rental property. The Respondent shall properly construct and install the pull-out cabinet for the narrow closet in bedroom number two of the residence at issue. 11. Credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned the construction project at issue. 13. The Complainant is now apprehensive about the Respondent’s ability to fully comply with the terms of the Corrective Work Order and properly construct and install the pull-out cabinet. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction work on the residence at issue are understandable, construction work is not a perfect science and it is not uncommon in the construction industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a final opportunity to complete necessary remedial work on the residence at issue. 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. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment). 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans and specifications), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent has constructed and installed the pull-out cabinet for the narrow closet in bedroom number two of the residence at issue. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter 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. §32-1101 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, June 7, 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