ALJDEC decisions subject to certification as final

2011A-4619-ROC · Registrar of Contractors · 2012-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through her attorney, Fidelis V. Garcia, Esq., Fidelis V. Garcia Law Office. The Respondent appeared through its attorney, Michael J. Welker, Esq., Gallian, Wilcox, Welker, Olson & Beckstrom L.C. 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. B.114064-R issued by the Registrar of Contractors. 2. At the onset of the scheduled hearing, Respondent stipulated that it was in violation 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). 3. There was no dispute that Respondent failed to install rebar in the concrete foundation of Complainant’s residence as required by applicable plans and specifications. 4. There was no dispute that Respondent’s failure to install rebar in the concrete foundation and the extensive cracking throughout Complainant’s residence failed to comply with applicable industry and workmanship standards. 5. The hearing continued for the presentation of matters in aggravation and mitigation for the undisputed violations, and for a determination of the alleged violation of A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action). 6. This is a residential matter where Complainant purchased a new residence, constructed by Respondent located at 346 Aspen, Fredonia, Arizona 86022. 7. Shortly after moving into the new residence Complainant noticed extensive cracking throughout her new residence and notified Respondent of the problem. 8. When Respondent was unable to resolve the cracking problem to her satisfaction, Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. 9. 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 perform designated corrective action on Complainant’s residence. 10. Respondent failed to comply with the terms of the Corrective Work Order. 11. Mr. William Redman, the assigned Agency Inspector who performed the on- site inspection and issued the Corrective Work Order, stated that the trusses in the Complainant’s residence were stressed to the maximum due to the continuing settling of the residence. Mr. Redman opined that it would be far cheaper to tear the house down and rebuild it at a different location than try to correct the continuing settlement problems with the residence. 12. The Complainant’s residence has sunk approximately four inches (4”) in the front of the residence, causing one half inch (1/2”) cracks throughout the residence, and causing the roof trusses in the residence to crack and break apart. 13. Credible testimony and evidence established that the residence is continuing to rapidly deteriorate and is approaching the point where it will be unsafe for habitation. 14. 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, this Respondent should not be allowed an additional opportunity to comply with the terms of the Corrective Work Order issued in this matter. 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, at Respondent’s sole expense, cause another properly licensed contractor of Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 15. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 10, 2012. Such prior License record reflects that License No. B.114064-R of Basic Development Corporation was first issued on May 20, 1996, and 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). 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 (6th ed. 1990). 3. There was no dispute that 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), 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. Credible testimony and evidence supported findings which establish a violation by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that License No. B.114064-R of Basic Development Corporation be revoked unless the Registrar of Contractors receives and accepts written proof that Respondent, at its sole expense, has caused a properly licensed contractor of Complainant’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if Respondent, at Respondent’s sole expense, causes a properly licensed contractor of Complainant’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter, on or before the effective date of this Order, then the above provided License revocation shall not take place and this matter shall be closed. 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, April 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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