ALJDEC decisions subject to certification as final

2011A-4287-ROC · Registrar of Contractors · 2012-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. 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. Respondent is the holder of License No. C-30.244360-R issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new roof and aluminum awning on Complainant’s residence. 3. Complainant was dissatisfied with Respondent’s workmanship and with Respondent’s failure to return to his residence and properly correct its deficient workmanship. 4. When the Respondent failed to comply with the Complainant’s repeated requests to return to his residence and properly correct Respondent’s deficient work, Complainant 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 September 1, 2011, issued a written Corrective Work Order directing Respondent to have properly licensed contractors perform designated corrective work on the Complainant’s residence. 6. Undisputed credible testimony and evidence established that Respondent failed to respond to the Corrective Work Order and that no corrective action was caused to be performed by Respondent. 7. The scope of License No. C-30.244360-R of L G A Stone and More Inc does not include contracting or subcontracting work on Complainant’s foam roof, and it does not include contracting or subcontracting the installation of metal awnings on Complainant’s residence. 8. Undisputed credible testimony and evidence established that Respondent knowingly contracted beyond the scope of Respondent’s License No. C- 30.244360-R. 9. Undisputed credible testimony and evidence established that Respondent’s workmanship on Complainant’s residence fails to comply with applicable workmanship and industry standards. 10. Undisputed credible testimony and evidence established that Respondent failed to do business under the name issued on Respondent’s License. 11. Undisputed credible testimony and evidence established that Respondent failed to properly display its License number in this matter. 12. Respondent is not licensed to perform work on Complainant’s roof or on Complainant’s metal awnings. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause other properly licensed contractors, of Complainant’s choice and at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order issued in this matter. 13. Administrative notice it taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 8, 2012. Such prior License record reflects that License No. C-30.244360-R of L G A Stone and More Inc is current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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. Undisputed credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner), A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-109 (failure to do business under the name on the License), A.R.S. § 32-1154 (A)(13), namely, A.R.S. § 32-1124(B) (display of license), A.R.S. § 32-1154(A)(17) (knowingly contracting beyond the scope of License), and A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, License No. C-30.244360-R of L G A Stone and More Inc be revoked unless the Registrar of Contractors receives, and accepts, written proof that the Respondent, at Respondent’s sole expense, has caused licensed contractors of Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter and written proof that Respondent is in full compliance with the provisions of A.R.S. § 32-1124(B) (display of license) and A.A.C. R4-9- 109 (doing business under the name on the license issued). It is further recommended that if the Respondent, at Respondent’s sole expense, causes properly licensed contractors of Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter, and provides acceptable written proof to the Registrar of Contractors that Respondent is in full compliance with A.R.S. § 32- 1124(B) and A.A.C. R4-9-109, on or before the effective date of this Order, then the above provided License revocation shall not take place, and instead, License No. C-30.244360-R of L G A Stone and More Inc shall be actively suspended for a period of thirty (30) days. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(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, May 8, 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