ALJDEC decisions subject to certification as final

2011A-371-ROC · Registrar of Contractors · 2011-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Neal Patrick Gilligan. 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 KB-2 (no. 250896) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a series of construction agreements based upon different written proposals for remodeling work on the Complainant’s residence provided by the Respondent. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship. 4. Credible testimony and evidence established that the parties became embroiled in several heated disputes regarding the remodeling construction project and that the parties mutually agreed to terminate their business relationship. 5. The Complainant then retained an alternative licensed contractor to correct the Respondent’s allegedly deficient construction work and complete the construction projects on the Complainant’s residence. 6. Credible testimony and evidence established that the Respondent then attempted to collect disputed monies that the Respondent claimed as due and owing from the Complainant. 7. The Complainant then 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 on-site inspection, and on February 10, 2011, he issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. There was no prehearing inspection in this matter because both the Respondent and the alternative contractor had performed construction work on the items set forth in the Corrective Work Order and the assigned Agency Inspector felt he would have been unable to discern which contractor was responsible for the corrective work that had been performed. 10. Credible testimony and evidence presented at hearing established that the Respondent, either through performing the directive corrective action itself, or paying the alternative contractor retained by the Complainant to perform the directed corrective work, fully complied with the terms of the Corrective Work Order issued in this matter. 11. The parties are still involved in a contentious monetary dispute regarding the Complainant’s claim for alleged monetary damages and the Respondent’s claim for the money allegedly due to the Respondent for construction work that the Respondent had completed before the parties agreed to terminate their construction agreement. 12. The Respondent’s position in this money dispute is found under all of the circumstances to have been asserted in good faith. 13. The parties’ good faith monetary dispute can be resolved in a civil court of competent jurisdiction. 14. Undisputed credible testimony and evidence established that the Respondent did knowingly contract beyond the scope of the Respondent’s License by installing shower drains in the Complainant’s residence. 15. Credible testimony and evidence established that the plumbing work performed by the Respondent has been fully corrected by a licensed plumbing contractor at the Respondent’s expense pursuant to 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated 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). 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (17) (knowingly contacting beyond the scope of the license of the licensee). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be placed on disciplinary probation for a period of thirty (30) days. 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.

Defendant one this day, August 19, 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