ALJDEC decisions subject to certification as final

2011A-5108-ROC · Registrar of Contractors · 2012-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Les A. Boegemann, Esq., A. Boegemann Law Firm PLC 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-61.239447-R, issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant to perform remodeling work on the Complainant’s existing residence for the total sum of $7,764.96. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship. 4. When the Respondent failed to correct its work to her satisfaction despite her repeated requests that it do so, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on September 22, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Respondent did not dispute that the items set forth in the Corrective Work Order failed to comply with applicable industry and workmanship standards and that corrective action was required as set forth in the Corrective Work Order. 7. There was no dispute that the Respondent has not performed any corrective work on the Complainant’s residence pursuant to the terms of the Corrective Work Order. 8. Credible testimony and evidence established that the Respondent has repeatedly attempted to contact the Complainant in order to gain access to her residence to comply with the terms of the Corrective Work Order. 9. Undisputed credible testimony and evidence established that the Complainant declined to respond to the Respondent’s repeated attempts to contact her. 10. The Complainant asserts that the Respondent’s attorney instructed her not to talk to the Respondent or the Respondent’s attorney during the onsite inspection at her residence, so she assumed that this was a request not to talk or respond to the Respondent or the Respondent’s attorney after the onsite inspection. 11. The Complainant’s actions, in refusing to answer the Respondent’s telephone calls or to respond to the Respondent’s letters requesting access to her residence, are found to constitute an unreasonable denial of access. 12. Credible evidence established that the course of conduct exhibited by the Complainant was not calculated to enable the expeditious accomplishment of the designated corrective action set forth in the Corrective Work Order issued in this matter. 13. The unreasonable denial of access is found to have prevented the Respondent from complying with the terms of the Corrective Work Order issued in this matter. 14. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the remodeling work on her 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. 15. Both parties demonstrated an ongoing inability to effectively communicate. However, 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 licensed contractor a reasonable opportunity after a hearing to correct any determined deficiencies in its construction work. 16. The credible evidence of record is insufficient and fails to support a finding that corrective action is required on any item of the Complaint at issue other than as set forth in the written Corrective Work Order. 17. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to properly display its license number with the acronym “ROC” as required by A.R.S. § 32-1124 (B) (display of license). 18. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors pursuant to a 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 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) (3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. There was insufficient credible evidence presented to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license). 5. In view of the finding of an unreasonable denial of access by the Complainant, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23 (failure to take appropriate corrective action) is supportable. 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 receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, 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. 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 29, 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