ALJDEC decisions subject to certification as final

2011A-60-ROC · Registrar of Contractors · 2011-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2011 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Allen Spencer. 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. 228316) License issued by the Registrar of Contractors. 2. This is a residential matter where the purchased a residence located at 7465 S. Branding Iron Road, Safford, Arizona. 3. Credible testimony and evidence established that the Complainant purchased the property from the previous owner of the residence. 4. There was no dispute that the owner of the residence represented that the residence at issue had been constructed by Steve Andrus, who allegedly worked with the Respondent to construct the residence at issue. 5. There was no dispute that the Respondent had constructed other residences in the Safford area. 6. Credible testimony and evidence, presented at hearing, established that the Respondent had worked with Steve Andrus on other construction projects in the Safford area. 7. There was no dispute that shortly after the Complainant purchased the residence at issue, it began to display major settlement problems that have caused severe cracking throughout the residence. 8. The Complainant retained an attorney and contacted the previous owner of the residence and Steve Andrus and attempted to reach a resolution to the issues with her residence. 9. There was no dispute that Steve Andrus’ attorney issued a letter to the Complainant wherein Steve Andrus agreed to purchase the residence at issue from the Complainant. 10. The Complainant accepted the offe,r but Steve Andrus failed to complete the agreed upon transaction. 11. When Steve Andrus failed to complete the agreed upon home purchase, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on June 30, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 13. Credible testimony and evidence established that the construction of the residence at issue failed to comply with applicable workmanship and industry standards. 14. Credible testimony and evidence establish that the Complainant’s residence is not habitable in its current condition. 15. There was no dispute that the Respondent did not comply with the terms of the Corrective Work Order. 16. The Respondent declined to comply with the terms of the Corrective Work Order on the alleged basis that it did not build the house at issue and was unaware that Steve Andrus constructed the residence utilizing the Respondent’s name and license number without the Respondent’s authorization or knowledge. 17. There was no dispute that Steve Andrus is not a licensed contractor in the State of Arizona. 18. Credible testimony and evidence established that the Respondent had knowingly aided and abetted Steve Andrus, an unlicensed person, to evade the contracting laws of the State of Arizona on previous construction projects and that as a result of this activity, Steve Andrus was able to utilize the Respondent’s business name and license number to obtain required permits from the local building authority and construct the residence at issue. 19. The Respondent is found to be fully responsible for correcting the errors and omissions in the construction of the Complainant’s residence performed by Steve Andrus while utilizing the Respondent’s business name and license number. 20. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 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) (10) (aiding or abetting an unlicensed person to evade this chapter), 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 that on the effective date of the Registrar’s Order the Respondent’s License be revoked unless 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. 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 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 $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. 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, November 16, 2011.

/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