ALJDEC decisions subject to certification as final

2010A-308476878-ROC · Registrar of Contractors · 2011-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Susan Kudenova. The Respondent appeared through its attorney, Joseph Holland. 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 B (No. 115481) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Respondent performed construction work as a licensed subcontractor for the Complainants who were acting in the capacity of owner-builders for the construction of a new log residence with an attached log sided garage 3. Credible testimony and evidence established that the Respondent was not employed as a general contractor for the construction of the log home and attached log-sided garage and that the Respondent is not responsible for the construction of the entire residence and attached garage. 4. Credible testimony and evidence established that the parties failed to utilize a written construction agreement and instead relied upon a series of emails (Exhibit Nos. C-31, C-32, and C-42) to memorialize the portions of the Complainants’ residence that the Respondent actually contracted to perform construction work on. 5. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to their satisfaction despite their written demand that the Respondent do so. 6. When the Respondent failed to comply with the Complainants’ written demand the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on November 30, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 8. The written Corrective Work Order provides that the following action must be taken no later than 15 calendar days from the date of the Corrective Work Order:

5] Main floor staircase: badly broken stringer + wrong treads; no framing for drywall at main floor and basement staircases. There was one break at the top outside of first floor stringer and walls need to be constructed. Contractor also agreed in an E- Mail that he would remove the treads he installed. Contractor to correct or finish by appropriate means.

10] Failed to install at least 3 post and beam support brackets in interior great room/loft area; removed bolts for same. Contractor stated that he was not allowed to finish this and would have no problem finishing. Contractor to correct or finish by appropriate means.

9. The Complainants sharply disagreed with the terms of the Corrective Work Order and asserted that all of the items set forth in their Complaint should have required appropriate corrective action by the Respondent. 10. Credible testimony and evidence established that the Respondent attempted to comply with the terms of the Corrective Work Order on the 12th day of the 15 days allowed in the Corrective Work Order. 11. Credible testimony and evidence established that the Complainants denied access to the Respondent based upon their belief that the Respondent would be unable to comply with the terms of the written Corrective Work Order within the fifteen day period set forth in the written Corrective Work Order. 12. Credible testimony and evidence established that the Complainants’ actions, in denying the Respondent access to their residence to attempt to comply with the terms of the Corrective Work Order, were unreasonable. 13. Credible testimony and evidence established that the Complainants have caused the stairway and the missing post and beam support brackets to be corrected by alternative contractors and that no further corrective work on the stairway and the post and beam support brackets is required. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent should have been responsible for the correction of any item in the Complaint other than the correction of the broken stringer in the main floor staircase and the installation of the missing post and beam support brackets. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform the construction project without legal excuse. 16. The Complainants’ unreasonable denial of access is found to preclude a finding that the Respondent failed to comply with the terms and conditions of the written Corrective Work Order issued in this matter. 17. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ stairway and beam support brackets has been modified and altered by an alternative licensed contractor. 18. In view of the unreasonable denial of access to the Respondent and the modification or alteration of the Respondent’s workmanship on the stairway and beam support brackets the credible testimony and evidence of record is found to be insufficient and fails to support a finding that the Respondent violated the charged provisions of 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). 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. The Complainants failed to sustain their burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes), 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), as charged in the Citation. RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be dismissed. 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 27, 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