ALJDEC decisions subject to certification as final

2011A-3586-ROC · Registrar of Contractors · 2011-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2011 APPEARANCES: Victor Padilla appeared personally. Seneca Homes, L.L.C. was represented by its authorized representative, Ron McDaniel. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Seneca Homes, L.L.C. (“Respondent”) is the holder of License No. 207349, a Class KB-2 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On June 21, 2011, Victor Padilla (“Complainant”) filed a written Complaint with the Registrar alleging that Respondent had been contracting with unlicensed contractors for the performance of electrical and plumbing work in St. Johns, Arizona. The Registrar designated the Complaint as Case No. 2011-3586. 3. The Registrar issued a Citation and Complaint in Case No. 2011-3586 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (2), (4), (5), (10), (15), and (17). 4. The Registrar forwarded Case No. 2011-3586 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. Respondent was hired by Amanda McCarthy to take over a remodeling project at Ms. McCarthy’s residence in St. Johns, Arizona. The original contractor, Superior Custom Builders, L.L.C., was terminated by Ms. McCarthy. 6. While Respondent may contract for electrical and plumbing work, such work must then be subcontracted to appropriately licensed electrical and plumbing contractors. Respondent’s Class KB-2 contracting license does not permit Respondent to perform such work itself. 7. Complainant is the qualifying party and member for Superior Custom Builders, L.L.C. 8. On August 23, 2010, Respondent’s then qualifying party, Ron McDaniel, submitted an Electrical Permit Application for the subject project to the City of St. Johns. The application listed Klint Heap as the electrical contractor. 9. Mr. Heap is an unlicensed contractor. On June 22, 2011, the Registrar issued a Cease & Desist Order to Mr. Heap for contracting without a license in violation of A.R.S. § 32-1151. 10. The evidence of record established that Respondent aided and abetted an unlicensed contractor, Mr. Heap, by obtaining the electrical permit and permitting the unlicensed contractor to perform work on a project for which Respondent was responsible. 11. The evidence of record further established that Respondent exceeded the scope of its Class KB-2 contracting license by performing plumbing work on the subject project. There is credible evidence that Respondent performed plumbing top out and installed plumbing fixtures. Such work requires a Class C-37 plumbing license. 12. There is credible evidence that Respondent did business in a name other than the one appearing on its contracting license. Respondent’s written proposals admitted into evidence contain the following language: “PLEASE MAKE ALL CHECKS PAYABLE TO RON MCDANIEL.” (Emphasis in the original). Ms. McCarthy and/or her boyfriend paid for Respondent’s work by checks made payable to Mr. McDaniel rather than to Respondent. 13. A plumber used on the project, Pete Phillips, was also an unlicensed contractor. 14. Any allegation made by Complainant not specifically addressed in the above Findings of Fact is determined to lack sufficient evidence of record to support a finding of a statutory violation by Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent deviated from plans or specifications, or that Respondent failed to comply with local building code requirements. 4. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (4), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent failed to comply with statutes or rules governing social security, workers’ compensation and/or unemployment insurance. 5. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (5), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent failed to pay any required taxes. 6. Complainant sustained his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (10) by aiding and abetting an unlicensed contractor, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established a factual basis for this violation. 7. Complainant sustained his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (15) by acting as a contractor in a name other than the name appearing on its contracting license, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established a factual basis for this violation. 8. Complainant sustained his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (17) by contracting outside the scope of its Class KB-2 contracting license, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established a factual basis for this violation. RECOMMENDED ORDER Respondent’s License No. 207349 shall be suspended for a period of five days commencing on the effective date of the Order entered in Case No. 2011-3586, followed immediately by a period of 180 days of probation. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $2,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1154(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above-provided 24-month period, and only if no claims are then pending. In the event of certification of the 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 that certification.

Done this day, December 19, 2011.

/s/ Brian Brendan Tully 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