ALJDEC decisions subject to certification as final

2011A-5127-ROC · Registrar of Contractors · 2012-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Lloyd L. Rabb, III. Esq., Rabb & Beal, PLLC. 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. Respondent is the holder of License No. B.232834-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant was constructing a new residence as an owner-builder utilizing a construction manager to assist her in the construction process. 3. Complainant discharged her previous construction manager in April 2010, and she contacted the Respondent. In April or May 2010, Respondent provided Complainant with a bid for hiring Respondent as a licensed general contractor to assume full control of the construction process for her new residence. 4. Complainant rejected Respondent’s bid for construction work and declined to hire Respondent as a licensed contractor for the construction project. Instead, Complainant hired Respondent’s qualifying party and owner, Mr. James Damien Gaul, as a replacement construction manager on an hourly wage basis. 5. Credible testimony and evidence established that Complainant knowingly hired Mr. Gaul as an hourly employee, and not as a representative of Respondent. 6. There was no dispute that Complainant utilized unlicensed contractors during the construction process. Complainant testified that she had been assured by the local building authority that as an owner-builder, she was entitled to utilize unlicensed individuals on her construction project. 7. Credible testimony and evidence established that Complainant selected all subcontractors and individuals utilized on the construction project and that she paid all individuals and subcontractors directly. 8. Credible testimony and evidence established that Mr. Gaul’s functions as a construction manager did not involve actually performing any construction work or supervising any of the subcontractors or individuals selected and paid by Complainant. 9. Credible testimony and evidence established that Mr. Gaul did not select or pay any of the subcontractors or individuals selected and paid by Complainant. 10. Credible testimony and evidence established that Mr. Gaul did not receive any financial benefit from the subcontractors or individuals that were selected and paid by Complainant. 11. There was no dispute that the new cork floor and the dumb waiter in the Complainant’s residence were installed by two persons hired by Complainant. Complainant was dissatisfied with the installation of the new cork floor and with the operation of the dumb waiter in her residence, and she filed complaints for unlicensed contracting against both individuals. 12. Complainant obtained orders for restitution from both individuals for the correction of the cork floor and for the improper installation of the dumb waiter in her new residence. 13. Complainant then filed the instant complaint against Respondent seeking to have Respondent, as a licensed general contractor, held responsible for the unsatisfactory work performed by the two unlicensed individuals that Complainant knowingly hired to install her new cork floor and the dumb waiter in her new residence. 14. The credible evidence of record fails to support a finding that either Respondent or Mr. Gaul performed any construction work on the cork floor or the installation of the dumb waiter in Complainant’s residence. 15. There was no credible evidence that either Respondent or Mr. Gaul supervised the installation of the cork floor or the dumb waiter in Complainant’s residence. 16. The credible evidence of record fails to support a finding that either Respondent or Mr. Gaul aided or abetted, or knowingly or recklessly combined or conspired with, an unlicensed person with the intent of evading the state’s contracting laws. 17. Credible testimony and evidence established that Respondent’s License No. B.232834-R was current and in good standing when Respondent submitted its bid for construction work to Complainant in April or May 2010.. 18. There was no credible testimony or evidence that Complainant had retained or hired Respondent, Copper Valley Construction LLC, to perform any construction work on her residence. Consequently, there is no credible evidence that Respondent was obligated to provide Complainant with a written construction agreement in this matter. 19. There was no credible evidence that Respondent offered to contract, or submitted a bid to contract, while its License was under suspension or while Respondent’s License was on inactive status. 20. Administrative notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 7, 2012. Such prior record reflects that License No. B.232834-R of Copper Valley Construction LLC was placed on inactive status on September 27, 2010 and remains on inactive status. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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 (6th ed. 1990). 3. Complainant failed to sustain her burden of proof to establish that Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations, by Respondent of the charged provisions of A.R.S. § 32-1154(A)(10) (aiding or abetting an unlicensed person), A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158 (minimum elements of a contract), A.R.S. § 32-1154(A)(18) (contracting or offering to contract or submitting a bid while license is on inactive status), 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 this matter shall be dismissed. 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, May 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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