ALJDEC decisions subject to certification as final

2011A-1234-ROC · Registrar of Contractors · 2011-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Kenneth Leffler. 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-61 (No. 201337) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to perform remodeling work on the Complainant’s residence for the total sum of $53,855.00. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to his satisfaction despite repeated opportunities to do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands for correction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on March 15, 2011, issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. There was no dispute that the Respondent did perform come corrective action on the Complainant’s residence. 7. Credible testimony and evidence established that the Respondent’s corrective work on the Complainant’s residence exacerbated the problems with the Respondent’s workmanship rather than actually correcting them.

8. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 9. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 10. There was no dispute that the Respondent’s Class C-61 License is limited to $25,000.00 per job per dwelling. 11. Undisputed credible testimony and evidence established that the Complainants paid the Respondent over $53,855.00 for the construction project at issue. 12. Credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s License in this matter. 13. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc in the Complainant’s residence. Thus, any condition placed into this Order for the purpose of allowing the 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 terms of the Corrective Work Order issued in this matter. 14. 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). It “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). 3. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), 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). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective day of this Order unless the Registrar receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent provides acceptable written proof that it has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter, on or before the effective date of this Order, then the above provided License revocation 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- 1154 D. 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, November 2, 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