ALJDEC decisions subject to certification as final

2010A-308477427-ROC · Registrar of Contractors · 2011-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. 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-48 (No.110754) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the parties entered into an oral agreement for the Respondent to remove an existing fabricated bathtub/shower surround and install a new tile bath/tile surround in the Complainant’s guest bathroom in preparation for the Complainant’s son return. 3. Credible testimony and evidence established that the parties had discussed that time was of the essence in this matter as the Complainant’s son was returning from the Army on a set date and the bath/shower had to be ready for use before that set date. 4. Credible testimony and evidence established that pursuant to the terms of the oral agreement, the Complainant agreed to furnish the tile and materials for the construction project and to pay the Respondent the sum of $1,200.00 for his labor. 5. Credible testimony and evidence established that during the middle stages of the tile installation project, the Complainant became dissatisfied with the appearance of the tile installation project and complained to the Respondent. 6. The Respondent then attempted to correct the tile installation to satisfy the Complainant. 7. Credible testimony and evidence established that the Complainant was dissatisfied with the Respondent’s corrective action on the partially completed construction project and that the Complainant again expressed his dissatisfaction to the Respondent. 8. Credible testimony and evidence established that the Respondent then abruptly abandoned the construction project leaving the Complainant with an unfinished and unusable bathroom. 9. When the Respondent abandoned the construction project and refused to return to complete the construction project, the Complainant contacted several alternative licensed contactors to inspect the partially completed construction project. 10. Credible testimony and evidence established that all of the alternative licensed contractors informed the Complainant that the Respondent’s tile work could not be properly corrected and that the tile work installed by the Respondent would have to be removed and replaced. 11. The Complainant then obtained bids for the removal and replacement of the Respondent’s tile work from at least three different licensed contractors. 12. The Complainant then selected the low bidder to remove and replace the Respondent’s tile work. 13. There was no dispute that the alternative licensed contractor then removed and replaced the Respondent’s tile work. 14. The Complainant then demanded that the Respondent reimburse him for the cost of the tile that was wasted in the Respondent’s initial incomplete tile installation and for the cost of removing the tile that had been installed by the Respondent. 15. There was no dispute that the Complainant had not paid the Respondent for any labor costs and that the Complainant was not seeking restitution for the labor costs associated with the installation of the new replacement tile surround. 16. When the Respondent refused to reimburse the Complainant for the cost of the wasted construction materials and the cost of the tile removal, the Complainant filed the Complaint at issue. 17. The Complainant is seeking restitution for the sum of $480.00 for the removal of the tile work installed by the Respondent and the sum of $1,308.81 for the cost of the tile and construction materials wasted by the Respondent in the Respondent’s partially completed tile installation. 18. There was no onsite inspection because the Respondent’s tile work had already been removed and replaced. 19. The Respondent’s asserts that he was not given an opportunity to correct his construction defects and that he should not be held responsible for the Complainant’s costs of removing the Respondent’s incomplete tile work and the tile and construction materials that were wasted in the Respondent’s incomplete tile installation. 20. Credible testimony and evidence established that the Respondent’s partially completed tile surround installation failed to comply with applicable industry and workmanship standards and that the partially completed tile installation was uncorrectable and required complete removal and replacement. 21. Credible testimony and evidence established that the Respondent’s partially completed tile installation work failed to comply with applicable plans and specifications. 22. Credible testimony and evidence established that the tile and tile installation materials utilized by the Respondent in his partially completed tile surround installation were not salvageable and could not be utilized again. 23. Credible testimony and evidence established that the Respondent abandoned the construction project without justification leaving the Complainant with an unfinished and usable bathroom. 24. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing the Respondent’s actions, in abandoning the construction project and refusing to return to complete the construction project leaving the Complainant with an unusable bathroom, are found to have left the Complainant with no choice but to have the construction project completed by an alternative licensed contractor. 25. Credible testimony and evidence established that the Complainant’s costs in the sum of $480.00 for the removal of the Respondent’s incomplete tile installation were reasonable and justified under the circumstances. 26. Credible testimony and evidence established that the sum of $1,308.81 was the amount of money that the Complainant paid for the tile and tile installation materials that were wasted in the Respondent’s unworkmanlike tile installation. 27. 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, the 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 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 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. 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), 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). 5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has paid the Complaint the total sum of $1,788.81 as restitution for the Complainant’s costs of $480.00 to remove the Respondent’s unworkmanlike and incomplete tile work and $1,308.81 for the cost of the tile and tile installation materials that were wasted in the Respondent’s unworkmanlike and incomplete tile installation work. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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 17, 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