ALJDEC decisions subject to certification as final

2011A-689-ROC · Registrar of Contractors · 2011-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2011, at 8:00 a.m. The matter was held open until August 1, 2011, to provide the parties sufficient time to complete their negotiations. APPEARANCES: The Complainant appeared through its attorney, John Buric. The Respondent appeared through its attorney, Julianne C. Wheeler. 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 A (No. 255080) License issued by the Registrar of Contractors. 2. This is a commercial matter where the parties entered into a written construction agreement for the Respondent to repave the parking area of the Complainant’s warehouse/distribution facility located at 955 North Fiesta Blvd, Gilbert, Arizona. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to the Complainant’s satisfaction despite the Complainant’s repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands, 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 February 24, 2011, he issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: After reviewing the information provided by both parties, it is in this inspector’s opinion, the following obligations should be met by both parties: if the contract specifically states that the respondent shall provide to the complainant lien releases from any and all sub- contractors and or suppliers when payments are due, then the respondent should do so. The respondent should have the opportunity to conduct their own core sample testing in accordance with the provisions set forth in the contract, and compare those results with the complainant’s testing. The complainant should provide reasonable access and stipulations for this. If the respondent’s results show deficiencies in the compaction of the pavement less than 94%, then the respondent shall correct those areas by appropriate means. Respondent should complete the project per contract. Per jobsite inspection, the respondent is to address the following deficiencies by appropriate means: Broken curbing Ruts and or “bird bath” depressions Cold joints “pushing” or excessive waviness on the surface of the pavement Unraveling Any exterior doors damaged by respondent Striping Ensure paving is completed to the properly designated property line at the north end of drive. 7. Credible testimony and evidence established that the Respondent was given an opportunity to perform its own core testing on the parking lot at issue. 8. Credible testimony and evidence established that the Respondent’s workmanship on the parking lot at issue failed to comply with applicable workmanship and industry standards and failed to comply with the terms and specifications of the parties’ written construction agreement. 9. Credible testimony and evidence established that the parties’ written construction agreement contains remedies for unacceptable workmanship that are more exacting and restrictive than normal workmanship standards. 10. Credible testimony and evidence established that the Respondent offered to perform corrective work on the items set forth in the written Corrective Work Order and bring the asphalt paving to within normal workmanship and industry standards, but declined to comply with the more restrictive remedial terms of the parties’ written construction agreement. 11. Credible testimony and evidence established that the Complainant denied the Respondent’s offer to perform corrective work that failed to comply with the terms of the parties’ written construction agreement. 12. The Complainant’s actions in declining to allow corrective work that failed to comply with the remedies set forth in the parties’ written construction agreement are not found to be unreasonable. 13. The parties’ are found to be bound by the terms of their written construction agreement. 14. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned the construction project at issue. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the Respondent’s operations as a licensed contractor. 17. 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the provisions of A.R.S. § 32-1154 (A) (abandonment or refusal to perform) and A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due for materials or services) as charged in the Citation and Complaint. 5. Credible testimony and evidence supported findings which established that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications), 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, commencing on the effective date of the Registrar’s order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent provides acceptable proof that it has fully accomplished 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. 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, August 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