ALJDEC decisions subject to certification as final

2011A-38-ROC · Registrar of Contractors · 2011-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Paul Loucks. The Respondent appeared on his own behalf. 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 C-12 (No. 187869) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent submitted a written proposal to the Complainant for the provision and installation of an AV and automation system in the Complainant’s new residence for the total sum of $54,707.99. 3. Credible testimony and evidence established that the Complainant accepted and signed the Respondent’s written proposal. 4. Credible testimony and evidence established that the Respondent then began work on the Complainant’s residence. 5. Credible testimony and evidence established that the parties then made numerous oral change orders to the original proposal and that the cost of the construction project escalated to the point where on June 1, 2010, the Complainant had paid the Respondent over $120,000.00 and the construction project was still incomplete. 6. Credible testimony and evidence established that the Complainant was not presented with a written change order from the Respondent until the hearing of this matter. 7. Credible testimony and evidence established that the Complainant did not understand why the cost of the construction project escalated to more than twice the original written proposal submitted by the Respondent. 8. Credible testimony and evidence established that on or about June 1, 2010, the Respondent presented the Complainant with an invoice for $15,000.00 to complete the construction project. 9. The Complainant observed that the construction project was far from complete and offered to pay the Respondent $7,500.00 immediately and the remaining $7,500.00 when the construction project was complete. 10. The Respondent then stopped work on the construction project and refused to return. 11. When the Respondent failed to comply with the Complainant’s repeated requests that the Respondent return to her residence and complete the construction project the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on January 28, 2011, issued a written Corrective Work Order directing the Respondent to return to the Complainant’s residence and properly complete the construction project. 13. Credible testimony and evidence established that the Respondent failed to respond to the written Corrective Work Order. 14. When the twenty (20) day period set forth in the Corrective Work Order expired the Complainant retained an alternative contractor to at least partially complete the construction project to the point where her new HVAC system would operate properly and contacted her credit card companies and sought charge-backs for the money that she had paid the Respondent in this matter. 15. Credible testimony and evidence established that the automation system had to be completed in order for the Complainant’s HVAC system to function properly. 16. Credible testimony and evidence established that the Complainant’s actions, in retaining an alternative contractor to at least partially complete her automation system so that the HVAC system in residence was operational and the residence inhabitable, were reasonable and justified under the circumstances. 17. Credible testimony and evidence established that the Complainant has received over sixty thousand dollars ($60,000.00) in charge-backs from her credit card companies in this matter. 18. Credible testimony and evidence established that the Respondent abandoned the Construction project leaving the Complainant with an unfinished automation system and an inoperable HVAC system. 19. Credible testimony and evidence established that the Respondent failed to perform his work on the Complainant’s residence in a professional and workmanlike manner. 20. Credible testimony and evidence established that the Respondent failed to provide the Complainant with written change orders in this matter. 21. Credible testimony and evidence established that the Respondent’s written proposal failed to contain the minimum elements of a contract as per A.R.S. § 32-1158 (Minimum elements of a contract). 22. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, particularly in view of the money the Complainant has already received in charge backs from her credit card companies and the fact that an alternative licensed contractor is already working on the construction project, no corrective action by the Respondent is found to appropriate. 23. The parties may resolve their monetary dispute including their respective claims for money damages in a civil court of competent jurisdiction. 24. 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. 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. § 32-12154 (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 commencing on the effective date of the Registrar’s Order that the Respondent’s License be actively suspended for a period of thirty (30) days to be immediately followed with one hundred and twenty (120) days of disciplinary probation. 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 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, August 4, 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