ALJDEC decisions subject to certification as final

2011A-5062-ROC · Registrar of Contractors · 2012-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 8, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Lyn Sheremeta. 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. K-5.201284-D, issued by the Registrar of Contractors. 2. This is a residential matter in which the parties entered into a written construction agreement prepared by the Respondent wherein the Respondent agreed to remove excessive lippage from the Complainant’s new marble floor. 3. There was no dispute that the Respondent performed surface grinding work on the Complainant’s new marble floor. 4. The Complainant was extremely dissatisfied with the Respondent’s workmanship and with the alleged damage that Respondent inflicted on the new marble floor. 5. When the Respondent failed to comply with the Complainant’s repeated demands to properly correct the work on the marble floor, 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 October 13, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s marble floor. 7. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Credible testimony and evidence established that the Respondent’s surface grinding work on the Complainant’s marble floor has resulted in unacceptable divots or dimples throughout the marble floor. 9. Credible testimony and evidence established that the Respondent’s construction work left unacceptable scratch marks throughout the Complainant’s marble floor. 10. Credible testimony and evidence established that the Complainant’s marble floor has not been properly polished. 11. Credible testimony and evidence established that the Respondent left polishing compound on the Complainant’s marble floor. 12. Credible testimony and evidence established that there is still unacceptable lippage on the Complainant’s marble floor. 13. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s marble floor fails to comply with applicable workmanship and industry standards. 14. Credible testimony and evidence established that the written construction agreement furnished by the Respondent and utilized as the construction agreement in this matter fails to contain the minimum elements of a contract as required by applicable statute. 15. Credible testimony and evidence established that the Respondent’s License is limited to tile cleaning and sealing, and concrete coatings, and that the performance of surface grinding work is beyond the scope of the Respondent’s license. 16. Credible testimony and evidence established that the Respondent knowingly performed construction work on the Complainant’s marble floor which was beyond the scope of the Respondent’s License. 17. 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 to cause further damage in the Complainant’s residence. Thus, any condition placed in 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 a properly licensed contractor of the Respondent’s choice, and at the Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order issued in this matter. 18. Notice is taken of the Respondent’s prior License record through 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. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (minimum elements of a contract), A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the Respondent’s 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. 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 on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice and at the Respondent’s sole expense to fully comply with the terms of the written Corrective Work Order issued in this matter and that the Respondent has brought its written construction agreements into full compliance with the applicable provisions of A.R.S. § 32-1158 (minimum elements of a contract). It is further recommended that if the Respondent causes the proper accomplishment of the above described actions, 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 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. §32-1101 (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 8, 2012.

/s/ M. Douglas Administrative Law Judge

Originally transmitted electronically on March 15, 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