ALJDEC decisions subject to certification as final

2011A-4719-ROC · Registrar of Contractors · 2012-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2012, at 8:15 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Jeffrey Adam Gilbert. 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. C-31.199192-R, issued by the Registrar of Contractors. 2. This is a residential matter wherein the Respondent constructed a block wall fence around the Complainant’s rear and side yards for the total sum of $20,293.75. 3. During the course of construction work, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and repeatedly expressed her dissatisfaction to the Respondent. 4. When the Respondent failed to adequately respond to the Complainant’s repeated requests, the Complainant informed the Respondent that it must fully resolve the problems with her new block fence or she would file a complaint with the Registrar of Contractors. 5. When the Respondent failed to resolve the matter to her satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on August 29, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work at the Complainant’s residence. 7. The Complainant then filed an addendum to her Complaint. The assigned Agency Inspector conducted an additional onsite inspection, and on September 28, 2011, issued a second Corrective Work Order directing the Respondent to perform corrective action at the Complainant’s residence. 8. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s block fence and retaining wall failed to comply with applicable workmanship and industry standards. 9. Credible testimony and evidence established that the Respondent then returned to the Complainant’s residence and performed corrective work on the Complainant’s block fence and retaining wall. 10. Credible testimony and evidence established that the Respondent’s corrective efforts failed to comply with applicable industry and workmanship standards and that the Complainant’s block fence and retaining wall now display unacceptable striping every few feet along the length of the block fence and retaining wall. 11. Credible testimony and evidence established that the Respondent failed to comply with the terms of the two (2) Corrective Work Orders issued in this matter. 12. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform construction work on the Complainant’s block wall. 13. Although the Registrar of Contractors normally allows a contractor an additional 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 to cause any further damage to the Complainant’s residence. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor to fully comply with the terms of the two Corrective Work Orders issued in this matter and to properly correct the unacceptable striping that is now present on the Complainant’s block fence and retaining wall. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors by review of the Registrar of Contractors’ public website. 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). 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. The credible evidence of record supported findings which establish violations by the Respondent of the charged provisions of 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. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. The credible evidence of record was insufficient to support a finding of a violation of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform).

RECOMMENDation 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 caused a properly licensed contractor to fully comply with the terms of the two (2) Corrective Work Orders issued in this matter and to fully correct the unacceptable striping on the Complainant’s block fence and retaining wall. It is further recommended that if the Respondent causes a properly licensed contractor to fully accomplish 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 $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154 (D). 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. §32-1101 (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, March 2, 2012.

/s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on March 5, 2012, to:

William A. Mundell, Director Registrar of Contractors

Resubmitted electronically with corrections on March 19, 2012

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