ALJDEC decisions subject to certification as final

2011A-2988-ROC · Registrar of Contractors · 2012-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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 C-31 (209083) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a six (6) foot high block wall around the Complainant’s rear yard and a three (3) foot block wall around the Complainant’s front yard, and installed metal gates and an irrigation system at the Complainant’s residence for the total sum of $16, 533.00. 3. There was no dispute that on May 3, 2011, the local building authority issued a Notice and Order to Comply to the Complainant which notified the Complainant that the newly constructed block walls had been constructed without a required building permit and that the newly constructed block walls failed to comply with applicable county drainage regulations. 4. The local building authority notified the Complainant that he would personally be responsible for the payment of fines of up to $750.00 per day if a required building permit was not obtained and the water drainage conditions caused by the new block walls were not properly corrected by June 10, 2011. 5. The Complainant then immediately notified the Respondent of the problems with the block walls and of the necessity of obtaining the required building permit and properly correcting the drainage problems with the new block walls before June 10, 2011. 6. When the Respondent failed to obtain the required building permit and failed to properly correct the block walls, the Complainant then obtained the required building permit at a cost of $450.00 and retained an alternative contractor to properly correct the drainage in the new block walls at a cost of $4,500.00. 7. The Complainant’s actions, in obtaining the required building permit and retaining an alternative contractor to install drainage blocks in the Complainant’s block walls to comply with applicable code requirements in order to avoid having to pay fines of up to $750.00 per day, were shown to be reasonable and necessary under the circumstances. 8. Credible testimony and evidence established that the Complainant’s costs for obtaining the required building permit and causing an alternative contractor to correct the drainage problems with the new block walls were reasonable and justified under the circumstances. 9. The Complainant then demanded that the Respondent reimburse him for his costs in obtaining the required construction permit and for the cost of correcting the drainage in the new block walls in the total sum of $4,950.00. 10. When the Respondent failed to comply with the Complainant’s demands for reimbursement, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on June 14, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s block walls and directing the Respondent to cause a properly licensed contractor to correct the metal gates. 12. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the June 14, 2011 Corrective Work Order. 13. The Complainant then filed an Addendum to his Complaint, and the assigned Agency Inspector conducted a second on-site inspection. On August 9, 2011, the assigned Agency Inspector issued an additional written Corrective Work Order directing the Respondent to perform designated corrective action the Complainant’s block walls. 14. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the August 9, 2011 Corrective Work Order. 15. Credible testimony and evidence established that the Respondent departed from or disregarded agreed upon plans and specifications for the construction of the Complainant’s block walls. 16. Credible testimony and evidence established that the Respondent failed to comply with applicable code requirements for the construction of the Complainant’s block walls. 17. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s new block walls failed to comply with applicable workmanship and industry standards. 18. Although credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s block walls is extremely poor, 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. 19. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of his new block walls 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 on the Complainant’s block walls. 20. 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). 4. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the two (2) written Corrective Work Orders issued in this matter and that the Respondent, as restitution, has paid the sum of $4,950.00 to the Complainant for the Complainant’s costs of complying with the Notice and Order to Comply issued by the local building authority. It is further recommended that if the Respondent properly accomplishes the above described corrective actions, 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 $1,000.00 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, January 6, 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