ALJDEC decisions subject to certification as final

2011A-2476-ROC · Registrar of Contractors · 2012-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20, 2012, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. 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. This is a residential matter where the Respondent installed new concrete aprons and sidewalk additions to the Complainant’s existing circular concrete driveway. 2. Credible testimony and evidence established that new concrete work began to crack shortly after it was completed. 3. The Complainant notified the Respondent of the cracking in the new concrete and requested the Respondent to return to the construction site and properly correct the unacceptable cracking problems. 4. When the Respondent failed to comply with the Complainant’s repeated requests to return to the Complainant’s residence and properly correct the cracking in the new concrete, 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 on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Undisputed credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order. 7. Credible testimony and evidence established that the Respondent’s concrete work at the Complainant’s residence fails to comply with applicable workmanship and industry standards and requires proper repair or replacement. 8. Credible testimony and evidence established that the Complainant is extremely unhappy with the Respondent’s concrete work that was performed at his 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. 9. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the new concrete work at 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 one final opportunity to complete necessary remedial work. 10. Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 21, 2012 which shows License No. KB-2.230041-D of Hewlett Concrete Contractors Inc. dba Hewlett General Contractors to be current and in good standing. / / / CONCLUSIONS OF LAW 1. Pursuant to A.A.C. R2-19-119(B), the Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 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)(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, commencing on the effective date of the Registrar’s Order, that the Respondent’s License No. KB-2.230041-D 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 properly accomplishes 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. § 32-1154 (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. § 32-1101(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 3, 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