ALJDEC decisions subject to certification as final

2011A-3724-ROC · Registrar of Contractors · 2012-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2012, at 8:00 a.m. APPEARANCES: The Complainants appeared through William Richards. The Respondent appeared through its attorney, Sean E. Brearecliffe, Esq., Rusing & Lopez PLLC 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 License No. KB-2.163593-D, issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed an extensive remodeling and addition construction project on the Complainants’ existing residence. 3. During the course of construction, the Complainants became increasingly dissatisfied with the Respondent’s workmanship on the construction project and the personal relationship between the parties deteriorated rapidly. 4. When the parties were unable to resolve their differences, the Complainants 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 on August 9, 2011, issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. There was no dispute that the items set forth in the Corrective Work Order fail to comply with applicable workmanship and industry standards and require appropriate corrective action by the Respondent. 7. There was no dispute that no corrective work was performed by the Respondent. 8. Credible testimony and evidence presented at hearing established that the Respondent made repeated attempts to gain access to the Complainants’ residence and that the Complainants repeatedly failed to respond to the Respondent’s requests for access to their residence. 9. Credible testimony and evidence established that the course of conduct exhibited by the Complainants was not calculated to enable the expeditious accomplishment of the designated corrective actions set forth the Corrective Work Order. 10. The Complainants’ actions in failing to respond to the Respondent’s repeated efforts to gain access to their residence are found to constitute an unreasonable denial of access in this matter. 11. The Complainants’ unreasonable denial of access precludes a finding that the Respondent failed to take appropriate corrective action in this matter. 12. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction work on their home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work as set forth in the Corrective Work Order issued in this matter. 13. Both parties demonstrated an ongoing inability to effectively communicate and there are obviously hard feelings on both sides. However, the instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity after a hearing to correct any determined deficiencies in its work. 14. Notice is taken of the Respondent’s prior licensing record by review of the Registrar of Contractors’ public website. CONCLUSIONS OF LAW 1. The Complainants have 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) (2) (departure from or disregard of plans or specifications or any building codes), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. R4-9- 108 (failure to perform work in a professional and workmanlike manner). 4. In view of the finding that there was an unreasonable denial of access in this matter, no violation of the charged provisions of A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action) is supportable. / / / / / / RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that either the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter or that the Complainants have denied reasonable access to the Respondent to perform the corrective action set forth in the written Corrective Work Order. It is further recommended that if the Respondent fully accomplishes the above described corrective action or is denied reasonable access to the Complainants’ residence, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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, February 22, 2012. /s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on February 23, 2012, to:

William A. Mundell, Director Registrar of Contractors

Resubmitted electronically with corrections on March 19, 2012

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826