ALJDEC decisions subject to certification as final

2010A-639713-ROC · Registrar of Contractors · 2010-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Laura Cardinal. 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’s License No. KA.170964-D was voluntarily canceled on July 22, 2010. 2. This is a residential matter where the parties entered into a written construction agreement for the Respondent to install a new asphalt driveway for the sum of $2,500.00 and to augment corners of the Complainant’s private road leading to the Complainant’s driveway for the sum of $1,500.00. 3. Undisputed credible testimony and evidence established that the Respondent partially performed all of the agreed upon work by placing a thin layer of asphalt on the driveway and on the corners of the private road and promised to return to complete the construction project. 4. There was no dispute that the Complainant paid the Respondent the sum of $2,000.00 when the initial work was performed and agreed to pay the Respondent the remaining $2,500.00 when the construction project was completed. 5. Undisputed credible testimony and evidence established that the Respondent failed to return to the Complainant’s residence to complete the construction project. 6. When the Respondent failed to comply with the Complainant’s repeated requests to return to his residence to complete the construction project, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s driveway and on the augmented corners of the private road leading to the Complainant’s driveway. 8. There was no dispute that the Respondent failed to respond to the Corrective Work Order and that the Respondent performed no corrective work on the Complainant’s driveway and the augmented corners of the private road. 9. Undisputed credible testimony and evidence established that the asphalt applied by the Respondent has deteriorated to the point where the asphalt on the Complainant’s driveway and augmented corners of the private road requires complete removal and replacement. 10. Undisputed credible testimony and evidence established that the Complainant received nothing of value for the $2,000.00 that the Complainant paid the Respondent. 11. Undisputed credible testimony and evidence established that the removal of the asphalt applied to the corners of the Complainant’s private road and the Complainant’s driveway will cost the Complainant an additional $600.00 and that the replacement of the asphalt driveway will cost an additional $3,500.00. 12. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project leaving the Complainant with an unfinished driveway. 13. Undisputed credible testimony and evidence established that the Respondent failed to comply with applicable code requirements. 14. Undisputed credible testimony and evidence established that the Respondent failed to place its license number on the proposal submitted to the Complainant in this matter. 15. 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 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. Undisputed credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (Abandonment), A.R.S. § 32-1154 (A) (Departure from or disregard of building codes), A.R.S. § 32(1154 (A) (13); Namely, A.R.S. § 32-1124 (B), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3); Namely, Rule R4-9-108 (Failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License No. KA-170964-D be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that 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 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with 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, October 28, 2010.

/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