ALJDEC decisions subject to certification as final

2011A-4741-ROC · Registrar of Contractors · 2012-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2012, at 8:15 a.m. APPEARANCES: The Complainants appeared through their attorney, Paul Lenkowsky. The Respondent appeared through its authorized representative, Gregory Schmidt. 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 The Respondent’s Class KB-1 (No. 192511) License was revoked by the Registrar of Contractors on October 5, 2011, for the Respondent’s failure to pay a civil penalty. 2. This is a residential matter wherein the Respondent entered into a construction agreement with the Complainants to perform addition and remodeling work on their existing residence for the total sum of $96,600.00. 3. Undisputed credible testimony and evidence established that through a series of oral change orders, the total value of the construction project was increased to over $300,000.00. 4. Credible testimony and evidence established that the Complainants’ stone tile floor began to display cracking and lifting soon after the stone tile floor was installed by the Respondent. 5. The Complainants notified the Respondent of the problems with their new floor and the Respondent examined the cracking in the new stone tile floor. 6. Credible testimony and evidence established that the Respondent then abandoned the construction project leaving the Complainants with a rapidly deteriorating residence. 7. The Complainants were extremely dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to return to their residence and properly complete and correct its work to within applicable workmanship and industry standards despite their repeated pleas. 8. 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. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and September 9, 2011, issued a written Corrective Work Order directing the Respondent to obtain a required building permit and to obtain the services of a properly licensed engineer, and then to bring the Respondent’s construction work on the Complainants’ residence to within applicable code and industry standards. 10. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 11. Credible testimony and evidence established that the local building authority required a building permit for the type and amount of construction work performed by the Respondent on the Complainants’ residence. 12. There was no dispute that the Respondent failed to obtain a required building permit for the construction project at issue and that consequently, there were no inspections of the Respondent’s construction work performed by the local building authority. 13. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ residence failed to comply with applicable code requirements. 14. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ residence failed to comply with applicable workmanship and industry standards. 15. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ residence is so poor as to constitute a possible health and safety danger to the inhabitants of the Complainants’ residence. 16. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ residence is so poor that all of the Respondent’s construction work should be removed and properly replaced.

17. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the Corrective Work Order issued in this matter. On the contrary, credible evidence of record established that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the Corrective Work Order issued in this matter. 18. 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 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. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform), A.R.S. § 32-1154 (A) (2) (departure from or disregard of building codes), 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 that the Respondent’s License be revoked. 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 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 14, 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