ALJDEC decisions subject to certification as final

2011A-1507-ROC · Registrar of Contractors · 2012-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its authorized representative, Ray Lennon. 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. Respondent is the holder of License No. B.212470-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant purchased a new residence constructed by Respondent. 3. Shortly after taking possession and occupying her new residence, Complainant noticed cracking throughout the residence, including drywall, ceiling, floor tile, tile grout, and concrete. 4. Complainant notified Respondent of the cracking problem, and Respondent performed cosmetic repair work on the unacceptable cracking. 5. The cracking recurred and Respondent returned to Complainant’s residence and again performed cosmetic repair work on the cracking. 6. There was no dispute that the cracking has continued and that the width of the cracks in Complainant’s concrete and drywall have continued to increase despite Respondent’s repeated cosmetic repair attempts. 7. Complainant also experiences difficulty with the adjustments of her exterior and interior doors and windows. 8. When Respondent was unable to resolve the cracking problems with her residence, Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on March 22, 2011, issued a written Corrective Work Order directing Respondent to perform designated corrective work on Complainant’s residence. 10. Respondent failed to respond to the Corrective Work Order, and no corrective work was performed on Complainant’s residence. 11. There was no dispute that Complainant’s residence has unacceptable cracking throughout her residence, including concrete, drywall, tile, tile grout, and countertop, and that the Complainant’s rear patio has separated from her residence. 12. There was no dispute that the cracking condition of Complainant’s residence fails to comply with applicable industry and workmanship standards. 13. Respondent admitted that it does not know how to correct the cracking problems with Complainant’s residence. 14. 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 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, at the Respondent’s sole expense, 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. 15. Administrative Notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 2, 2012. Such prior License record reflects that License No. B.212470-R of R B L Construction and Development LLC was placed on inactive status on May 23, 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. . 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 (6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by 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. R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that License No. B.212470- R of R B L Construction and Development LLC be revoked on the effective date of this Order unless the Registrar of Contractors receives and accepts written proof that Respondent has, at Respondent’s sole expense, caused an alternative licensed contractor of Complainant’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if Respondent, at Respondent’s sole expense, causes a properly licensed contractor of Complainant’s choice to fully comply with the terms of the written Corrective Work Order, 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 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 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. § 32-1101(A)(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, April 2, 2012.

/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