ALJDEC decisions subject to certification as final

2010A-308476913-ROC · Registrar of Contractors · 2011-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Patti A. Glamuzina. The Respondent appeared on his own behalf. 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 C-31 (233745) License issued by the Registrar of Contractors. 2. There was no dispute that the parties entered into a written construction agreement for the Respondent to perform construction work at the Complainants’ residence for the sum of $22,000.00. 3. There was no dispute that the Complainants paid the Respondent the agreed upon sum of $22,000.00 and that the Respondent was fully paid for his work at the Complainants’ residence. 4. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly correct its work despite their repeated requests that he do so. 5. When the Respondent failed to comply with the Complainants’ repeated requests the Complainants 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 and on November 24, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The written Corrective Work Order provides, in pertinent part, as follows: All decisions herein are based on standard practices for similar work in the construction industry and or the adopted Workmanship Standards for Licensed Contractors (WSLC). These standards cover performances of those construction items of major concern to the buyer. The effective date for the start of these standards should begin with the close of escrow, when the buyer occupies the structure or the date of discovery, whichever occurs first, unless otherwise stated.

Complaint’s Allegations from Complaint Form are Underlined.

1. Wall height was to be same as new garage slab. Wall is 2-feet shorter. Registrar of Contractors (ROC) ***** Contract appears to support Complainant’s (C/P) allegation for wall height. Respondent should properly re-work, re-build wall as necessary to comply with contracted agreement. All work must be inspected, approved and code compliant.

2. Backfill and drainage piping was done improperly and had to be redone compacted and inspected at C/P’s expense. ROC ***** R/P should properly compensate the C/P or otherwise resolve this matter.

3. Stucco wall coating is incomplete. ROC ***** Agree. R/P should properly complete all stucco work on existing and or re-built walls so as to closely match the existing house stucco. R/P’s masonry license does not cover stucco color coat finishing. All work to be performed by properly licensed contractor(s).

4. Neighbors lot use to stage materials, needs to be cleaned up. ROC ***** R/P should properly clean-up next door lot.

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 failed to perform his construction work in a professional and workmanlike manner. 10. Credible testimony and evidence established that the Complainants paid the sum of $8,786.60 to an alternative licensed contractor to correct the backfill and drainage problems caused by the Respondent’s improper installation of the drainage pipe and backfill. 11. The Respondent is found to be fully responsible for the Complainants’ expenses involved in causing the backfill and drainage pipe installation to be properly corrected. 12. Credible testimony and evidence established that the Respondent’s construction work on the backfill and drainage pipe installation failed to comply with local building code requirements. 13. Credible testimony and evidence established that the Respondent failed to construct the new retaining wall in accordance with the terms of the parties’ construction agreement. 14. Credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications and applicable building codes. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or reused to perform the construction contract at issue. 16. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondent was advised that in the event of a finding of a violation against him, the Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against the Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding the Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. 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 credible testimony and evidence of record is insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment or refusal to perform). 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 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). 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 shall be revoked unless the Registrar of Contractors receives and accepts proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. 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 this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 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, May 18, 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