ALJDEC decisions subject to certification as final

2011A-3584-ROC · Registrar of Contractors · 2011-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on her 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. 143722) was suspended by the Registrar of Contractors on December 8, 2011, for lack of bond and on April 22, 2011, for non renewal. The Respondent is not able to contract with this license at this time. 2. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly correct its work despite her repeated requests that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated requests for proper corrective action on her residence, 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 July 8, 2011, 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’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 7. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Undisputed credible testimony and evidence established that the Respondent’s failure to perform the corrective work set forth in the Corrective Work Order has allowed the wood siding, railing, and porches on the Complainant’s residence to be exposed to the weather without proper sealing or painting and that consequently, the exposed wood has weathered, warped, and is beginning to rot. 9. 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. 10. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project at issue and that as a result of the Respondent’s abandonment and failure to comply with the terms of the Corrective Work Order issued in this matter, the Complainant has suffered extensive weather damage to the exterior wood portions of her residence. 11. 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) (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. 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- 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, December 21, 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