ALJDEC decisions subject to certification as final

2010A-308477752-ROC · Registrar of Contractors · 2011-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Eric Hawkins. The Respondent appeared through its authorized representative, Joe Paris. 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-21 (No. 125951) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Respondent knowingly misrepresented the scope of the Respondent’s landscaping license and entered into an oral construction agreement with the Complainants for the performance of an extensive remodeling project on the Complainants’ residence. 3. Credible testimony and evidence established that the Respondent knew that the value of the construction work to be performed would substantially exceed the sum of $1,000.00, and knew that a written construction agreement was required for the construction project at issue. 4. Credible testimony and evidence established that the Complainants relied upon the Respondent’s expertise as a licensed contractor to properly complete the remodeling construction project on their residence. 5. Credible testimony and evidence established that there was no set price for the construction project and that the Respondent would be paid for materials and labor as the project progressed, with all checks made out directly to the Respondent’s authorized representative, Joe Paris. 6. Credible testimony and evidence established that Joe Paris would then cash the checks and pay the Respondent’s employees and pay for all materials that the Respondent utilized on the extensive remodeling project at the Complainants’ residence. 7. There was no dispute that the Respondent’s only license with the Registrar of Contractors is the Class C-21 (landscaping) License at issue. 8. As the remodeling project progressed, the Complainants became increasingly dissatisfied with the Respondent’s workmanship and expressed their displeasure to the Respondent and demanded that the Respondent properly correct its workmanship errors to their satisfaction. 9. Credible testimony and evidence established that Respondent then abandoned the construction project leaving the Complainants with an unfinished residence. 10. When the Respondent abandoned the construction project, the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 11. An assigned Agency Inspector reviewed the Complaint and on December 21, 2010, issued a letter informing the Respondent that the Registrar of Contractors had received information that the Respondent had been offering to perform or performing construction work beyond the scope of the Respondent’s Class C-21 (landscaping) License. 12. The assigned Agency Inspector also conducted an onsite inspection and on January 21, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 13. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 14. When the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter, the Complainants retained a properly licensed general contractor to correct the Respondent’s workmanship and complete the construction project at a cost of $59,660.42. 15. Credible testimony and evidence established that the cost of $59,660.42 for the proper correction of the Respondent’s poor workmanship and for the completion of the construction project was reasonable and justified for the construction work involved. 16. The Complainants actions, in retaining a properly licensed contractor to properly correct the Respondent’s workmanship and complete the construction project so that they could occupy their residence, were shown to be reasonable and justified in view of the circumstances in this matter. 17. Credible testimony and evidence established that the Respondent knowingly represented itself to the Complainants as being properly licensed to perform construction work which the Respondent knew was beyond the scope of the Respondent’s Class C-21 License. 18. Credible testimony and evidence established that the Respondent entered into a construction agreement with the Complainants for the performance of electrical, plumbing, carpentry, and painting work on the Complainants’ residence. 19. Undisputed credible testimony and evidence established that the performance of electrical, plumbing, carpentry and painting work is beyond the scope of the Respondent’s Class C-21 License. 20. Credible testimony and evidence established that the Respondent’s construction work on the Complainants’ residence failed to comply with applicable workmanship and industry standards and was so poor that most of the Respondent’s construction work had to be removed and replaced by the properly licensed general contractor retained by the Complainants. 21. Credible testimony and evidence established that the Respondent abandoned the Complainants’ construction project without legal excuse for the abandonment. 22. Credible testimony and evidence established that the Respondent departed from or disregarded applicable plans, specifications, and building codes in the construction work that the Respondent performed on the Complainants’ residence. 23. Credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s License. 24. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have 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. The Complainants failed to sustain their burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (7) (the doing of a fraudulent act). 5. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment of a contract or refusal to perform without legal excuse for the abandonment or refusal), 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) (17) (knowingly contracting beyond the scope of the license of the contractor), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § (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. 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, August 18, 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