ALJDEC decisions subject to certification as final

2010A-308477308-ROC · Registrar of Contractors · 2011-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. 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 C-42 (No. 124650) License was suspended for lack of Qualifying Party on January 18, 2011. 2. The Respondent’s License was previously suspended for lack of bond from July 7, 2010 through December 9, 2010. 3. This is a residential matter where on February 15, 2010, the Respondent performed a roof repair on the Complainant’s residence for the sum of $400.00. 4. The Complainant’s roof continued to leak and the Complainant notified the Respondent of the continuing leakage problems with the Complainant’s roof. 5. When the Respondent failed to comply with the Complainant’s repeated requests to return to the Complainant’s residence and properly correct his roof, the Complainant 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 December 10, 2010, issued a written Corrective Work Order directing the Respondent to either restore its License and properly correct the Complainant’s roof or resolve the complaint in a financial manner. 7. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s roof failed to comply with applicable workmanship and industry standards. 9. Undisputed credible testimony and evidence established that the Complainant received nothing of value for the $400.00 that he paid to the Respondent. 10. The Complainant has now had his roof fully corrected by an alternative licensed contractor and no further corrective action is required on the Complainant’s roof. 11. 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 a 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. Undisputed credible testimony and evidence supported findings which established 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, June 28, 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