ALJDEC decisions subject to certification as final

2011A-1579-ROC · Registrar of Contractors · 2011-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Michael Morrell. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record, 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 B (No. 196887) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant is a former employee of the Respondent. 3. Credible testimony and evidence established that when the Complainant’s employment with the Respondent was terminated, the Complainant filed a complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had installed modified bitumen roofing systems on seven residences in Phoenix area and that the Respondent had failed to obtain alleged required permits for the roofing work performed by the Respondent. . 4. Pursuant to the filing of the formal complaint, the Registrar of Contractors issued a Citation and Complaint notifying the Respondent that it was being charged with alleged violations of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee). 5. There was no dispute that the Respondent had applied a modified bitumen roofing system on seven different residences in the Phoenix area while the Complainant was employed by the Respondent. 6. There was no dispute that the application of a modified bitumen roofing system is beyond the scope of the Respondent’s License. 7. There was no dispute that the modified bitumen roofing system was applied in a professional and workmanlike manner on all of the seven residences involved. 8. The Respondent asserted that it utilized the modified bitumen roofing system because it was easier to install and provided a better roofing system for the consumer than the alternative types of the roofing materials that were within the scope of the Respondent’s License. 9. Credible testimony and evidence established that the local building authority requires modified bitumen roofing systems to be installed by properly licensed roofing contractors. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that the local building authority required a permit for the installation of the modified bitumen roofing systems on the seven residences at issue. 11. Credible testimony and evidence established that the Respondent installed the modified bitumen roofing system on the seven different residences at issue despite the fact that the Respondent knew that the installation of a modified bitumen roofing system was beyond the scope of the Respondent’s License. 12. Credible testimony and evidence established that the Respondent now utilizes properly licensed roofing subcontractors to install modified bitumen roofing systems on residential construction projects. 13. 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. A.A.C. R4-9-103 provides that the scope of a Class B- License is as follows: GENERAL RESIDENTIAL CONTRACTOR Construction of all or any part of a residential structure or appurtenance, except for electrical, plumbing, air conditioning systems, boilers, swimming pools, spas, and roofing (except shingles and shakes) which must be subcontracted to an appropriately licensed contractor. Also included are the scopes of work in B-3 and most of the C scopes except as restricted above. 5. Credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure from or disregard of building codes) and A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee). 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 placed on disciplinary probation for a period of forty five (45) days. 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, September 9, 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