ALJDEC decisions subject to certification as final

2011A-3920-ROC · Registrar of Contractors · 2012-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2012, at 1:00 p.m. APPEARANCES: The Complainants appeared through Denise Diamond. The Respondent appeared through its authorized representative, Ricardo Larios. 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 K-21 (No. 215669) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed landscaping work at the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to resolve their complaints to their satisfaction despite their repeated requests that he do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests, 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. 6. During the on-site inspection, the Inspector observed a code violation and on July 29, 2011, issued a written Corrective Work Order directing the Respondent to correct and comply with the building code requirements by appropriate means. 7. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Credible testimony and evidence established that the Respondent had installed pavers located at the exterior of the Complainants’ “doggy door” approximately one inch below the weep screed and installed crushed granite flush with the weep screed in violation of IRC Building Code R703.6.2.1. 9. The Respondent’s failure to comply with applicable building code requirements is found to constitute a violation of applicable workmanship and industry standards. 10. There was no credible evidence of any unreasonable denial of access in this matter. 11. Although the parties displayed a certain amount of personal antipathy at the hearing, 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 his work. 12. Credible testimony and evidence established that the Respondent failed to properly display his license number with the acronym “ROC” as required by applicable statute. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that 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 any building codes), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license), 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, 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 the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) (display of license). It is further recommended that if the Respondent properly accomplishes the above described corrective actions, 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. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 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, February 10, 2012.

/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