ALJDEC decisions subject to certification as final

2010A-308476827-ROC · Registrar of Contractors · 2011-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Lorainne Parr. The Respondent appeared through David Frederick Steams. . 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 Class B (No. 186911) License was placed on inactive status on April 7, 2010. 2. Credible testimony and evidence established that the Respondent is no longer conducting business as a licensed contractor in the State of Arizona. 3. This is a residential matter where the Respondent installed windows and doors in the Complainants’ residence. 4. The Complainants were dissatisfied with the Respondent’s workmanship and 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 on-site inspection and on December 7, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The Corrective Work Order provides, in part, as follows: License # 186911 issued to TriCities Window and Door was inactivated on 4/7/10 and cannot do or subcontract the following corrective (action) in this directive until license is reactivated. 7. There was no dispute that the Respondent has not reactivated its license. 8. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 9. Credible testimony and evidence established that the Respondent’s construction work on the Complainants’ residence failed to comply with applicable workmanship and industry standards. 10. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ residence failed to comply with applicable code requirements. 11. 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. 12. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s license. 13. 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 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