ALJDEC decisions subject to certification as final

2011A-4782-ROC · Registrar of Contractors · 2012-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2012, at 8:00 a.m. APPEARANCES: The Complainants appeared through Linda McMahon. The Respondent appeared through its authorized representative, Michael Dale. 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 B (No. 245909) License issued by the Registrar of Contractors. 2. Mrs. Linda McMahon is the wife of Patrick McMahon and co-owner of the residence at issue. Linda McMahon was added as a named Complainant without objection at the onset of the scheduled hearing. 3. This is a residential matter where the Respondent performed remodeling work on the Complainants’ existing residence. 4. There was no dispute that during the course of construction, the parties developed a very adversarial personal relationship at the jobsite which resulted in repeated verbal confrontations between Patrick McMahon and the Respondent and Patrick McMahon and the local building authority. 5. The Complainants were very dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work and resolve the parties’ money issues to their satisfaction. 6. When the Respondent failed to correct its workmanship issues to the Complainants’ satisfaction, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 30, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 8. Credible testimony and evidence established that at the time the Corrective Work Order was issued, the Respondent’s construction work on the Complainants’ residence was very poor and failed to comply with applicable workmanship and industry standards. 9. Credible testimony and evidence established that the construction project at issue has been inspected and approved by the local building authority. However, credible testimony and evidence also established that the Respondent has not fully complied with the terms of the Corrective Work Order. 10. Credible testimony and evidence established that the Respondent utilized painted lumber for the sill rather than pressure treated lumber as required by the parties’ construction agreement. The Respondent shall fully comply with the terms of the written Corrective Work Order and properly replace the painted lumber in the sill with pressure treated lumber. 11. Credible testimony and evidence established that the remaining items set forth in the Corrective Work Order have been corrected to within applicable industry and workmanship standards. 12. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction work on their home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 13. Despite the obvious communication difficulties the parties have experienced in this matter, 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 its work. 14. Credible testimony and evidence, and the behavior of the Patrick McMahon during the hearing of this matter, established that Patrick McMahon has difficulty controlling his temper. The Respondent is not expected to subject itself to verbal abuse. Any further angry confrontations at the jobsite shall be treated as an unreasonable denial of access resulting in this matter being closed without disciplinary action against the Respondent’s License. 15. Credible testimony and evidence established that the Respondent departed from or disregarded applicable plans or specifications in this matter. 16. Credible testimony and evidence established that the Respondent failed to properly display its license number with the acronym “ROC” in this matter. The Respondent shall correct all of its paperwork and business practices so as to fully comply with the provisions of A.R.S. § 32-1124 (B) (display of license). 17. The resolution of the parties’ money dispute will necessarily involve a monetary adjudication and may be resolved in a civil court of competent jurisdiction. 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 violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A)(2) (departure from or disregard of plans or specifications), 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- 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. §32-1101A (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 17, 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