ALJDEC decisions subject to certification as final

2010A-308477518-ROC · Registrar of Contractors · 2011-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2011

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

WITNESSES: Randy Lyles Rudy Koivisto

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with local building codes when Respondent built a road and other off site improvements for Complainant’s residential housing development. The Citation and Complaint issued by the Registrar of Contractors in this matter also alleges that Respondent performed work while its license was inactive. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainants’ Exhibits C1 through C21. 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 the statutes cited in the Citation and Complaint. FINDINGS OF FACT 1. Respondent is the holder of license A.244710-C, a general engineering contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to build fixed works such as roads, streets, and other public works. Respondent’s President and Qualifying Party is Rudy Koivisto. The license has been inactive since July 1, 2010. 2. Respondent was hired by Complainant to grade roads and dig out culverts at a residential subdivision Complainant was developing, known as The Last Lap Race Place, LLC/Competition Ridge, Inc., in Mohave County Arizona.[1] The work was performed by Respondent in August and September 2010, while Respondent’s license was on inactive status. 3. Based on official findings from Mohave County Public Works, made after an inspection, the work done by Respondent did not meet County specifications.[2] Complainant hired a properly licensed contractor to correct the deficiencies.[3] Complainant is requesting restitution in the amount of $3,500.00. 4. Respondent’s corporate President, Rudy Koivisto, testified that he thought he could do the work on an inactive license because the agreement with Complainant was that Respondent would be paid an hourly wage. Koivisto’s understanding of Arizona law is incorrect and makes no sense. Koivisto is not credible. 5. Respondent knew or should have known that it could not bid for, agree to, and perform work in August and September 2010 while its license was on an inactive status. Furthermore, the results of Respondent’s work did not meet County standards. 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)(18) by contracting while on an inactive license. 3. The appropriate sanction in this matter is for Respondent to pay restitution in the amount requested by Complainant. In addition, a civil penalty is warranted. This tribunal recommends the maximum amount because Respondent knowingly disregarded Arizona law when it performed the work while its license was suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license A.244710-C, held by Koivisto Constructors and Erectors, Inc., be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $3,500.00, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2010-30847518 shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanctions provided above, Koivisto Constructors and Erectors, Inc., pay a civil penalty of $1,000.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(E). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Koivisto Constructors and Erectors, Inc., as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, July 19, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit C6 (handwritten portion). [2] Exhibit C3. [3] Exhibit C18. [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).

-----------------------

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