ALJDEC decisions subject to certification as final

2010A-308477331-ROC · Registrar of Contractors · 2011-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 23, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Brenda Lee. 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 is the holder of a Class B (226155) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant to perform extensive remodeling and addition work on the Complainant’s existing residence. 3. There was no dispute that during the course of construction the Complainant became increasingly dissatisfied with the Respondent’s workmanship and that the personal relationship between the parties deteriorated rapidly. 4. When the Respondent abandoned the construction project and refused to return the Complainant 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 January 7, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 7. There was no dispute that the Respondent failed to even respond to the Corrective Work Order. 8. When the Respondent failed to comply with the terms of the Corrective Work Order the Complainant contacted alternative contractors to perform some of the corrective action set forth in the Corrective Work Order. 9. Undisputed credible testimony and evidence established that as of June 14, 2011, the Complainant had paid the total sum of $35,444.58 to alternative contractors to perform some of the corrective action set forth in the Corrective Work Order. 10. There was no dispute that additional corrective work is still required in order to fully comply with the terms of the Corrective Work Order. 11. Undisputed credible testimony and evidence established that the Complainant’s actions, in paying alternative contractors to perform corrective work on his residence when the Respondent failed to comply with the terms of the Corrective Work Order, were reasonable and justified under the circumstances. 12. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project at issue. 13. Undisputed credible testimony and evidence established that the Respondent departed from or disregarded plans or specifications and building codes in the construction work that the Respondent performed at the Complainant’s residence. 14. Undisputed credible testimony and evidence established that the Respondent knowingly aided and abetted unlicensed persons to perform construction work on the Complainant’s residence and evade the state’s licensing laws. 15. Undisputed credible testimony and evidence established that the Respondent failed to properly display its license number in violation of the applicable provisions of A.R.S. § 32-1124 (B). 16. There was no dispute that the parties’ written construction agreement was prepared by the Respondent. 17. Undisputed credible testimony and evidence established that the Respondent’s written construction agreement failed to contain the minimum elements of a contract in violation of the applicable provisions of A.R.S. § 32-1158. 18. Undisputed credible testimony and evidence established that the Respondent knowingly performed metal roofing work on the Complainant’s residence. 19. There was no dispute that the performance of metal roofing work is beyond the scope of the Respondent’s License. 20. Undisputed credible testimony and evidence established that the Respondent knowingly performed extensive electrical work at the Complainant’s residence. 21. There was no dispute that the performance of electrical work is beyond the scope of the Respondent’s License. 22. Undisputed credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s License. 23. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 24. 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 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. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged 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) (10) (Aiding or abetting an unlicensed person to evade this chapter), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1158 (Minimum elements of a contract), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond scope of the license of the licensee), 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. § 32-1154 D. 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. §32-1101 A (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 23, 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