ALJDEC decisions subject to certification as final

2011A-6863-R0C · Registrar of Contractors · 2012-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Managing Member Ruben Mendoza and Qualifying Party Angela Mendoza.

WITNESSES: Jim Hennessy, ROC Inspector Ruben Mendoza Angela Mendoza

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This action was set for hearing upon Complainant’s allegations about poor workmanship concerning roofing work done by Respondent. The Citation and Complaint issued by the Registrar of Contractors (“Registrar” or “ROC”) alleges additional violations for failure to comply with a Corrective Work Order (“CWO”) and operating outside the scope of Respondent’s license. Complainant appeared for hearing and stated that no further work was needed at the jobsite. Respondent appeared and its principals stated that it has corrected the issue that created the out-of-scope problem. This tribunal entered the complaint file received from the Registrar into the record. The tribunal took brief testimony from Inspector Hennessy and Respondent’s principals. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to close this matter. FINDINGS OF FACT 1. Respondent is the holder of License No: B.243646-R issued by the Registrar. It authorizes Respondent to operate as a general contractor for residential projects and to perform or subcontract for all construction except for specialty areas. Specifically, although a holder of a B license may install shingles and shakes, a class B license does not authorize installation of Modified Bitumen Roofing (commonly known as “rolled roofing”). 2. As noted above, at the hearing Complainant stated that Respondent did not need to do any further work on the CWO. He appeared at the hearing to get a refund of insurance money from Respondent. He admitted that Respondent is being cooperative with his refund request.[1] 3. ROC Inspector Jim Hennessy testified that Respondent installed Modified Bitumen Roofing at this jobsite, that this was outside the scope of its general contractors license, and that the work should have been subcontracted to an appropriate specialty contractor. He issued a warning letter to Respondent on December 30, 2011.[2] 4. Respondent’s principals, Ruben and Angela Mendoza, both testified that they are now better aware of the limits of their license and will not repeat the violation. They are also working with the insurance company to resolve Complainant’s money issue. 5. Because Complainant admitted compliance with the CWO, and Respondent admitted the beyond-the-scope violation, no further testimony was taken. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO), and A.R.S. § 32- 1154(A)(17) (prohibiting contracting outside the scope of the license). The evidence shows that Respondent complied with the CWO. Therefore, no violations of the first two citations are found. 3. The evidence also shows that Respondent performed work outside the scope of its license. However, this tribunal concludes that the warning letter that was issued is sufficient and that the matter should be closed without further action. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-6863 against RJM Builders LLC dba R and A Builders be closed.

In the event of certification of the 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 that certification.

Done this day, May 30, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge informed Complainant that restitution will not be appropriate for the case as presented, and that the money dispute is a contractual issue that may be better suited for the civil courts if it is not resolved informally. [2] That letter is in the complaint file. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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