ALJDEC decisions subject to certification as final

2010A-308476602-ROC · Registrar of Contractors · 2011-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2011, and July 20, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, James Sparks. 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. Respondent is the holder of a Class K-31 (196733) License issued by the Registrar of Contractors. 2. This is a residential matter where on September 23, 2010; the Respondent constructed a block wall around the Complainant’s rear and side yards. 3. The Complainant was dissatisfied with the Respondent’s workmanship and demanded that the Respondent properly correct the construction of the new block wall. 4. When the Respondent failed to comply with the Complainant’s demand the Complainant 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 on November 10, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s block wall. 6. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 7. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s block wall failed to comply with applicable workmanship and industry standards. 8. There was no dispute that the Respondent’s License had been administratively suspended for non-renewal by the Registrar of Contractors from May 31, 2010 through October 13, 2010. 9. Credible testimony and evidence established that the Respondent knew that it could not perform construction work while its license was under suspension and knowingly and recklessly conspired with an alternative contractor to utilize the alternative licensed contractor’s license to obtain a required construction permit from the local building authority and to knowingly evade the state’s licensing laws and construct the Complainant’s block wall with a suspended license. 10. Credible testimony and evidence established that the Respondent failed to comply with applicable code requirements in this matter. 11. Credible testimony and evidence established that the Respondent failed to properly display its license number on its letterheads and other documents used by the Respondent in this matter. 12. Credible testimony and evidence established that there was no unreasonable denial of access to the Respondent in this matter. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent committed a fraudulent act.

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 her burden of proof to establish that the Respondent committed a fraudulent act. Therefore, the evidence of record did not sufficiently sustain a finding of a violation by the Respondent of the provisions of A.R.S. § 32-1154 (A) (7) (Fraudulent act), as charged in the Citation. 5. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of building codes), A.R.S. § 32- 1154 (A) (10) (Aiding or abetting a licensed or unlicensed person to evade this chapter), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (18) (Contracting while the license is under suspension)), 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. §32-1101A (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 25, 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