ALJDEC decisions subject to certification as final

2010A-3753141-ROC · Registrar of Contractors · 2011-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Evan Brinton. 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 K-61 (No. 239522) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a written construction agreement with the Complainant for the installation of new roofing materials on the Complainant’s residence for the total sum of $10,129.24. 3. There was no dispute that the Respondent prepared the written agreement for the roofing work on the Complainant’s residence. 4. Credible testimony and evidence established that the Respondent failed to properly include its ROC license number on the written agreement. 5. Credible testimony and evidence established that the Respondent’s written agreement failed to contain the minimum elements of a contract required by applicable statute. 6. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to her satisfaction despite her repeated demands that it do so. 7. When the Respondent failed to comply with the Complainant’s repeated demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on March 1, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the March 1, 2010 Corrective Work Order. 10. When the Complainant’s roof leaked and allowed moisture into the interior of the Complainant’s residence, the Complainant notified the Registrar of Contractors of the continuing problems with her roof. The assigned Agency Inspector conducted another onsite inspection and on August 23, 2010, issued a second written Corrective Work Order. 11. Credible testimony and evidence established that the Respondent failed to comply with the terms of the August 23, 2010 Corrective Work Order. 12. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s roof failed to comply with applicable industry and workmanship standards. 13. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s roof failed to comply with the manufacturer’s recommendations. 14. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s roof failed to comply with applicable code requirements. 15. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by fully complying with the terms of the two Corrective Work Orders issued in this matter. On the contrary, credible testimony and evidence established that the Respondent has repeatedly failed to properly accomplish compliance with the terms of the Corrective Work Orders issued in this matter and that the Respondent’s efforts appear to have been directed to delay and excuse rather than to achieve compliance with the terms of the two Corrective Work Orders. 16. Credible testimony and evidence established that the Complainant’s roof fails to comply with applicable industry and workmanship standards. 17. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor of the Complainant’s choice to fully comply with the two Corrective Work Orders issued in this matter. 18. Notice is taken of the Respondent’s prior good 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 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 credible evidence of record established violations by the Respondent of the provisions of 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) (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) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, rule A.A.C. R4- 9-108 (Failure to perform work in a professional and workmanlike manner). 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 caused a properly licensed roofing contractor of the Complainant’s choice to fully comply with the terms of the two written Corrective Work Orders issued in this matter. It is further recommended that if the Respondent provides acceptable written proof that the Respondent has caused a properly licensed roofing contractor of the Complainant’s choice to fully comply with the terms of the two written Corrective Work Orders issued in this matter, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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, February 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