ALJDEC decisions subject to certification as final

2011A-1472-ROC · Registrar of Contractors · 2011-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2011, and November 30, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Brenda Lee. The Respondent appeared through its authorized representative, Jose Rodriguez. 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-17 (No. 221038) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed construction work as a subcontractor on an extensive remodeling and addition construction project at the Complainant’s residence. 3. Credible testimony and evidence established that the Complainant paid the general contractor in full for the entire construction project. 4. Credible testimony and evidence established that the general contractor failed to fully pay the Respondent for the Respondent’s metal work at the construction project. 5. When the general contractor failed to pay the Respondent for its construction work in accordance with the general contractor’s agreement to do so, and when the Complainant refused to pay the Respondent any money above the money that the Complainant had already paid the general contractor, the Respondent stopped work on the construction project leaving some metal work items unfinished. 6. When the Respondent failed to comply with the Complainant’s demand that the Respondent return to the construction project and complete the construction work, 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 onsite inspection and reviewed the matter. 8. On March 29, 2011, the Registrar of Contractors issued a letter stating that a citation would not be issued against the Respondent’s license. 9. The Complainant then filed an addendum to his complaint against the Respondent, and the assigned Agency Inspector conducted a second onsite inspection. On May 27, 2011, the assigned Agency Inspector issued a written Corrective Work Order directing the Respondent to perform corrective action on the paint finish on the metal stairway railings at the Complainant’s residence. 10. Credible testimony and evidence presented at hearing established that the Respondent is not responsible for completing all of the construction work that was required in its construction agreement with the general contractor in view of the fact that the general contractor failed to pay the Respondent in accordance with construction agreement with the Respondent. 11. Credible testimony and evidence established that the Respondent is responsible for completing construction work on construction items that it has been fully paid for. 12. Credible testimony and evidence established that the Respondent is responsible for performing corrective work on all items that the Respondent completed before stopping work on the construction project, provided that the completed items have not been subject to neglect, modification or abnormal use. 13. Credible testimony and evidence established that the painting of the metal railing for the stairway was part of a separate contract between the Respondent and the Complainant and that the Complainant has fully paid the Respondent for the agreed upon construction work on the stairway. 14. Credible testimony and evidence established that the painting of the metal stairway way fails to comply with applicable workmanship and industry standards. 15. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 16. Credible testimony and evidence established that the Respondent was fully paid for its construction work on the Complainant’s metal entrance way. 17. Credible testimony and evidence established that after the Respondent’s construction work on the Complainant’s metal entrance door had been completed, the general contractor removed the door sweep from the new metal door and damaged the new metal door which now requires proper repair. 18. Credible testimony and evidence established that the Respondent is not responsible for the actions of the general contractor and that the Respondent is not responsible for performing corrective work on the metal entrance door where its work has been subject to damage caused by the general contractor. 19. Credible testimony and evidence established that the Complainant has already filed a complaint and obtained appropriate disciplinary action against the general contractor in this matter. 20. Credible testimony and evidence established that the parties have great difficulty in effectively communicating and scheduling the performance of required corrective action at the Complainant’s residence. However, the instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity after a hearing to correct any determined deficiencies in his work. 21. Although Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction work on his residence are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work in order to fully comply with the terms of the Corrective Work Order issued in this matter. 22. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform the construction contract without legal excuse. 23. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 24. 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. The credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (1) (abandonment or refusal to perform without legal excuse) or A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or building codes) as charged in the Citation. 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of 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, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent provides acceptable written proof that it has fully accomplished the above described corrective action, 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, December 14, 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