ALJDEC decisions subject to certification as final

2011A-5687-ROC · Registrar of Contractors · 2012-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. 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.C-34.201059-R issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed painting, stucco, and electrical work on the Complainant’s residence. 3. When the Complainant discovered the condition of the Respondent’s stucco, electrical, and partial primer application on her residence, she complained about the Respondent’s poor workmanship. 4. When the Respondent failed to comply with the Complainant’s demands to properly correct his workmanship deficiencies, 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 October 24, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Respondent failed to comply with the terms of the Corrective Work Order. 7. The Respondent’s electrical and stucco work failed to comply with applicable workmanship and industry standards. 8. The Respondent is not licensed to perform electrical or stucco work and can not perform corrective work on such items. 9. The Respondent knowingly contracted beyond the scope of the Respondent’s License. 10. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct his 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 wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause, at Respondent’s sole expense, a properly licensed electrical contractor of the Complainant’s choice to correct the electrical work that Respondent performed on the Complainant’s residence and a properly licensed contractor of the Complainant’s choice to fully correct the stucco work that the Respondent performed on the Complainant’s residence as per the terms of the Corrective Work Order issued in this matter. 11. The Respondent removed large sun shades from the Complainant’s back patio and left the sunshades lying in the Complainant’s backyard. The Respondent, at the Respondent’s sole expense, shall cause a properly licensed contractor of the Complainant’s choice to properly re-install the Complainant’s sun shades. 12. Credible testimony and evidence established that the Complainant’s residence is still not painted and that she has received nothing of value for the $800.00 that she has paid to the Respondent in this matter. 13. The Complainant seeks restitution for the $800.00 that she paid the Respondent as a down payment in this matter. 14. Notice is taken of the Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on March 28, 2012. Such prior License record reflects that License No.C-34.201059-R of Tyrone Michael Howard dba T M H Painting is current and in good standing. 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 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee), 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). 4. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that License No.C-34.201059-R of Tyrone Michael Howard dba T M H Painting be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent, at the Respondent’s sole expense, has caused a properly licensed electrical contractor of the Complainant’s choice to fully correct the Respondent’s electrical work on the Complainant’s residence, and that the Respondent has caused a properly licensed stucco contractor of the Complainant’s choice to fully correct the stucco work that the Respondent performed on the Complainant’s residence, and that the Respondent has caused a properly licensed contractor of the Complainant’s choice to re-install the Complainant’s sunshades on her residence, and that the Respondent has, as restitution, paid the sum of $800.00 to the Complainant. It is further recommended that if Respondent, at his own expense, causes properly licensed electrical and stucco contractors of the Complainant’s choice to fully correct the electrical and stucco work that Respondent performed on the Complainant’s residence, and causes a properly licensed contractor of the Complainant’s choice to re-install the Complainant’s sunshades that the Respondent removed from the Complainant’s residence and, as restitution, provides acceptable written proof that the Respondent has paid the sum of $800.00 to the Complainant by certified funds, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with 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 28, 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