ALJDEC decisions subject to certification as final

2011A-3145-ROC · Registrar of Contractors · 2011-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Sam Chirco. 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 B (No. 024881) License has been administratively suspended for lack of bond by the Registrar of Contractors since November 27, 2010. 2. There was no dispute that the Respondent cannot perform or subcontract to perform construction work with its suspended license. 3. Credible testimony and evidence established that the Complainant entered into a construction agreement with the Respondent on February 1, 2010, for an extensive remodeling project on the Complainant’s residence for the total cost of $48,798.00. 4. Credible testimony and evidence established that the Complainant paid the Respondent in full for the agreed upon construction project. 5. Credible testimony and evidence established that the Respondent abandoned the construction project leaving the Complainant with an unfinished residence. 6. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to return to her residence and properly complete the remodeling construction contract despite her repeated requests that the Respondent do so. 7. When the Respondent failed to comply with the Complainant’s repeated requests to complete the construction project, 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 onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. There was no dispute that no corrective work was performed on the Complainant’s residence in response to the issuance of the Corrective Work Order. 10. There was no dispute that the remodeling construction work on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 11. The Respondent asserts that the Complainant’s construction contract was with an individual indentified a Mike Chirco who utilized the Respondent’s name and license number without the Respondent’s knowledge or permission. 12. Credible testimony and evidence established that the Respondent was fully aware of the fact that Mike Chirco was utilizing the Respondent’s name and license number to perform a remodeling construction project on the Complainant’s residence and that the Respondent is fully responsible for causing the remodeling construction work on the Complainant’s residence to be fully completed and corrected in accordance with the terms of the Corrective Work Order issued in this matter. . 13. Credible testimony and evidence established that the Respondent abandoned the remodeling the construction project at issue, leaving the Complainant with an unfinished residence. 14. Credible testimony and evidence established that the Respondent departed from plans and specifications and applicable building codes in its construction work at the Complainant’s residence. 15. Although technically the Respondent would be capable of complying with the terms of the Corrective Work Order issued in this matter if the Respondent obtained a bond and restored its license to active status, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to cause any further strife to this Complainant. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 16. 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. 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) (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 caused a properly licensed contractor of the Complainant’s choice to fully comply with terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent provides acceptable written proof that it has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter, 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 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, November 29, 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