ALJDEC decisions subject to certification as final

2010A-308477273-ROC · Registrar of Contractors · 2011-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Qualifying Party and corporate President Chris Warren.

WITNESSES: Ted Gerold, ROC Inspector Greg Stanfield Chris Warren

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The Citation and Complaint issued by the Registrar of Contractors in this matter also alleges that Respondent performed work outside the scope of its license. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Respondent’s Exhibits 1 and 2. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has violated statutes cited in the Citation and Complaint.

FINDINGS OF FACT 1. Respondent is the holder of license K-11.231172-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform electrical work only for both residential and commercial projects. Chris Warren is Respondent’s Qualifying Party and sole corporate officer.[1] 2. Complainant Greg Stanfield owns a bar and grill. He testified that he verbally hired Respondent to perform remodeling work at the bar that included electrical work as well as other work such as installation of wood paneling, demolition of the base of the bar, construction/framing of a new bar base to prepare it for a granite countertop, plumbing, and installation of tile flooring. The work was done over a period of months (October 2008 through August 2009). There is no paperwork showing the agreement or its terms. Complainant has submitted many checks that were written to “Chris Warren” for work that was done.[2] Those checks add up to thousands of dollars. 3. Chris Warren testified that he only performed electrical or related work and that the checks written to him were for work that was within the scope of his electrical license. 4. In November 2010, Complainant filed an ROC complaint about the work that Respondent did in the bar. ROC Inspector Ted Gerold inspected the site on December 13, 2010 and found poor workmanship with regard to paneling that was installed and particle board that was used as a substrate for a granite countertop for the bar. He issued a Corrective Work Order (“CWO”) stating that the work he observed was outside the scope of Respondent’s electrical license and that Respondent could not do the corrective work or subcontract to do it, but should hire a properly licensed contractor to make the corrections noted in the CWO. 5. Respondent did not attempt to have the corrective work done because he disputed the premise that he performed the work that needed correction. 6. No permit was obtained for any of the remodeling work that was done. Inspector Gerold testified that a permit was required for the work that he inspected and any electrical work that Respondent admitted he performed. 7. At hearing, Respondent submitted Exhibits 1 and 2, which are written statements from James Ward and Fran Bader. The Exhibits state that their authors performed work (“woodwork” and painting) at Complainant’s bar and were hired by Complainant, after being contacted through Respondent. The Exhibits are dated in December 2010 and contain original signatures. Similar statements from other trades (plumbing and drywall) are in the complaint file as attachments to Respondent’s correspondence to the ROC. 8. The statements are not given much weight by the Administrative Law Judge. The credibility of the authors is unknown and none of them testified under oath at the hearing. There is no evidence that the authors (other than the plumber) are licensed contractors and it is likely that many of them engaged in unlicensed contracting. This Administrative Law Judge cannot assess the reliability of these hearsay statements without further evidence. 9. The Administrative Law Judge finds Complainant’s testimony that Respondent performed the work to be of greater weight than Respondent’s. Several of the notations in the memo sections on the checks written to Respondent, stating “plumbing” and “counter tops,” support Complainant’s testimony.[3] 10. The evidence shows that Respondent performed work outside the scope of the electrical license and did so poorly. However, Complainant is not an unsophisticated consumer and the evidence also supports a reasonable inference that Complainant knew or should have known of the limits of Respondent’s license. Thus, Complainant was complicit in Respondent’s unlicensed activity.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The evidence shows violations, as alleged in the Citation and Complaint, of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) by failing to comply with local code, (A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, and (A)(17) by knowingly contracting outside the scope of the license. Respondent failed to obtain permits, performed work outside the scope of the electrical license, and did the work poorly. 3. With regard to subsection (A)(23), failing to comply with a CWO, the Administrative Law Judge does not see how Respondent could have complied without further contracting outside the scope of the license. If Respondent hired other contractors, Respondent would be subcontracting outside the scope of its license. The only option for resolution would be a monetary resolution. But, the CWO did not order that as an option. Therefore, this tribunal cannot find a failure to comply with the CWO. 4. A review of Respondent’s current license status shows that the license is current and in good standing since 2007. 5. Because of Complainant’s complicity with the violations, any remedy that benefits Complainant is not appropriate and should not be ordered. 6. The appropriate sanction in this matter is a 30-day suspension of Respondent’s license.

RECOMMENDED ORDER IT IS RECOMMENDED that license K-11.231172-D, held by CDX Construction, Inc., be suspended for 30 days beginning the effective date of the Registrar’s Order.

In the event of certification of the 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 that certification.

Done this day, August 5, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Hereinafter, both the company and Chris Warren will be referred to as “Respondent.” [2] There are 17 checks attached to the complaint, all written to Chris Warren. [3] In addition, Respondent testified that he “threw away” invoices to Complainant. This statement detracts from his credibility. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826