ALJDEC decisions subject to certification as final

2011A-3551-ROC · Registrar of Contractors · 2012-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 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. The Respondent’s Class KB-2 (No. 240657) License was suspended by the Registrar of Contractors for lack of bond on November 14, 2011. 2. This is a residential matter wherein the Respondent performed agreed upon concrete work on the Complainant’s property. 3. Undisputed credible testimony and evidence established that shortly after the concrete work was completed, the concrete slab evidenced severe cracking and began to slide away from the Complainant’s residence. 4. Undisputed credible testimony and evidence established that shortly after the concrete work was completed, the concrete steps and landing evidenced severe cracking and began to slide away from the Complainant’s residence. 5. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to return to her residence and properly correct its concrete work despite her repeated requests that it do so. 6. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 4, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 9. Undisputed 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 complete removal and replacement. 10. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the Corrective Work Order issued in this matter. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to properly accomplish compliance with the terms of the Corrective Work Order and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the Corrective Work Order issued in this matter. 11. Although the Registrar of Contractors often allows a contractor an additional opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. 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. 12. 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. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated 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. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. 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 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. 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 instead, the Respondent’s License shall be placed on disciplinary suspension for a period of twenty (20) days. 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. §32-1101A (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 30, 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