ALJDEC decisions subject to certification as final

2011A-1980-ROC · Registrar of Contractors · 2011-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Nicholas Lomeli. 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 Class K-37 (No. 253168) License was suspended by the Registrar for non-renewal on April 1, 2011. 2. This is a residential matter where the Respondent performed plumbing work at the Complainant’s residence as part of an extensive fire restoration project. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete its work to her satisfaction despite her demands that it do so. 4. When the Respondent failed to comply with the Complainant’s demands, the Complainant caused the plumbing work on her residence to be corrected and completed by an alternative plumbing contractor and filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. The parties were unable to resolve their differences and on April 22, 2011, the Complainant requested that a citation be issued against the Respondent. 6. On June 20, 2011, the Registrar of Contractors issued a Citation and Complaint charging the Respondent with possible violations of A.R.S. § 32- 1154 (A) (1) (abandonment or refusal to perform), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (display of license), A.R.S. § 32-1154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license), and A.R.S. § 32-1154 (A) (3), namely Rule R4- 9-108 (failure to perform work in a professional and workmanlike manner). 7. Credible testimony and evidence established that the Respondent “pieced out” portions of the Complainant’s plumbing work to an individual indentified as Robert Mejia. 8. There was no dispute that Mr. Mejia is not, and was not at the time at issue, a licensed plumbing contractor in the State of Arizona. 9. The Respondent produced testimony that Mr. Mejia was a “1099” employee of the Respondent. 10. Credible testimony and evidence established that Mr. Mejia performed most if not all of the plumbing work performed by the Respondent at the Complainant’s residence. 11. The Respondent is found to be fully responsible for the plumbing errors and omissions committed by its alleged employee, Mr. Mejia. 12. Credible testimony and evidence established that the Respondent abandoned the Complainant’s construction project leaving the Complainant with an unfinished plumbing project that required her to retain an alternative plumbing contractor to complete the construction project at additional cost in order to occupy her residence. 13. The Complainant testified that she paid the alternative plumber $290.00 for the alternative plumber’s work in correcting and completing the Respondent’s plumbing work. 14. Credible testimony and evidence established that when the Respondent abandoned the construction project, the only faucet with running hot water was an exterior water faucet located on the back of the Complainant’s residence. 15. Credible testimony and evidence established that the exterior water faucet located on the back of the Complainant’s residence was not supposed to have hot water running to it. 16. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 17. Credible testimony and evidence established that the Respondent failed to properly display its license number with the acronym “ROC” on all written bids, letterheads and other documents used by the Respondent. 18. Credible testimony and evidence established that the Respondent acted in the capacity of a contractor utilizing the Respondent’s plumbing license in a name other than as set forth upon the Respondent’s plumbing license. 19. 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. 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) (13), namely, A.R.S. § 32- 1124 (B) (display of license), A.R.S. § 32-11154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license), 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 date of the Registrar’s Order. 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 27, 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