ALJDEC decisions subject to certification as final

2011A-2768-ROC · Registrar of Contractors · 2012-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Michael Gonzales. 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-60 (No. 196617) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Complainant is the owner of the residence located at 8726 E. Whitton Ave., Scottsdale, Arizona and that he wanted to have the kitchen and bathrooms in the residence remodeled for his mother who actually lives in the residence. 3. Credible testimony and evidence established that the Respondent submitted a written signed construction agreement to the Complainant for the construction and installation of new cabinets in the Complainant’s kitchen and two bathrooms for the total sum of $12,350.00. 4. Credible testimony and evidence established that the Complainant accepted the Respondent’s written construction agreement and paid the Respondent a total of $11,000.00 in accordance with the terms of the Respondent’s written construction agreement. 5. Credible testimony and evidence established that during the course of construction, the Respondent began to experience severe money difficulties due to the general economy and requested additional monies from the Complainant to properly complete the construction project. 6. Credible testimony and evidence established that during the course of construction, the Complainant became dissatisfied with the Respondent’s workmanship on the construction project and declined to pay the Respondent any additional money to the Respondent until the construction project was fully corrected and completed in accordance with the parties’ written construction agreement. 7. When the Respondent failed to comply with the Complainant’s demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on June 20, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the residence at issue. 9. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order. 10. The Respondent asserted that it was unable to fully comply with the terms of the Corrective Work Order due to a lack of sufficient funds to pay for needed material and that the Respondent intended to close its business doors at the end of January 2012. 11. Credible testimony and evidence established that the Respondent’s construction work on the completed portion of the Complainant’s kitchen cabinets fails to comply with applicable industry and workmanship standards and requires proper correction in accordance with the terms of the Corrective Work Order issued in this matter. 12. Credible testimony and evidence established that the Complainant’s kitchen cabinets are not yet complete, despite the fact that the construction project at issue started in September 2010. 13. Credible testimony and evidence established that the Respondent’s construction work on the kitchen cabinets departed from or disregarded the terms of the parties’ written construction agreement. 14. Credible testimony and evidence established that the Respondent’s construction work above the Complainant’s stove failed to comply with applicable code requirements. 15. 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 supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), 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 that the Respondent’s License be revoked on the effective date of the Registrar’s Order unless the Registrar 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 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 the Respondent pay the sum of $250.00 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, January 20, 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