ALJDEC decisions subject to certification as final

2012A-3969-ROC · Registrar of Contractors · 2013-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2013, at 8:00 a.m. APPEARANCES: Yesenia Dicochea (hereinafter “Complainant”) appeared on her own behalf. Allan Fire Protection Systems (hereinafter “Allan”) appeared through its authorized representative, Kenneth Gregory Olson. 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. Allan is the holder of License No. C-16.051317-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant contracted with Star Energy Construction LLC[1] for remodeling work on Complainant’s residence. Star Energy Construction LLC entered into a subcontract agreement with Allan for the installation of a fire sprinkler system in Complainant’s residence. Allan completed approximately 99.9% of the fire sprinkler system and stopped work on the construction project based on the allegation that it had received no money for its labor and materials. Complainant demanded that Allan return to her residence and complete its work. Complainant asserted that she had fully paid Star Energy Construction LLC for the installation of the fire sprinkler system and was unwilling to pay any additional money to Allan. 3. When Allan refused to complete the construction project unless it was paid for its labor and materials, Complainant filed a formal Complaint against Allan with the Registrar of Contractors. 4. The parties were unable to resolve their dispute and a Citation and Complaint was issued charging Allan with possible violations of A.R.S. § 32-1154(A)(2)[2] and A.R.S. § 32-1154(A)(13),[3] namely, A.R.S. § 32- 1124(B).[4] 5. Complainant’s husband, Hiram Dicochea (hereinafter “Mr. Dicochea”), testified that Allan was hired by Star Energy Construction LLC. Mr. Dicochea testified that Complainant paid Star Energy Construction LLC the sum of $7,000.00 for the installation of the fire sprinkler system. Mr. Dicochea stated that Complainant should not have to pay twice for the same work. Mr. Dicochea testified that Complainant had been waiting for eight months for the fire sprinkler system to be finalized.[5] 6. Complainant testified that she had already paid for the installation of the fire sprinkler system. Complainant stated that she had no money left to pay twice for the same work. Complainant testified that she had also filed a formal complaint against Star Energy Construction LLC with the Registrar of Contractors.[6] 7. Kenneth Gregory Olson (hereinafter “Mr. Olson”) testified that Allan was hired by Star Energy Construction LLC. Mr. Olson stated that Allan finished construction of the fire sprinkler system on February 2, 2012, and that the fire sprinkler system was complete except for a walk-through and required inspection. Mr. Olson stated that Allan invoiced Star Energy Construction LLC 100% on February 17, 2012. Mr. Olson testified that Allan received no money from Star Energy Construction LLC for the labor and materials that Allan utilized in the installation of the fire sprinkler system in Complainant’s residence. Mr. Olson stated that Allan was not willing to complete the walk-through and schedule the required inspection with the local building authority unless Allan was paid for its work on the construction project. Mr. Olson testified that Allan had also filed a complaint against Star Energy Construction LLC with the Registrar of Contractors. Mr. Olson acknowledged that Allan failed to include its license number preceded by the acronym “ROC” in Allan’s written communication with the Registrar of Contractors dated September 6, 2012.[7] 8. Administrative notice is taken of Allan’s prior license record as reflected on the Registrar of Contractors’ public website on February 11, 2013. Such prior license record reflects that License No. C-16.051317-R of Allan is current. 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. There was no credible evidence that any of the fire sprinkler work completed by Allan departed from or disregarded plans or specifications or any building codes. Allan’s refusal to complete the construction project by scheduling a final inspection unless it was paid for its labor and materials is not a violation of the charged provision of A.R.S. § 32- 1154(A)(2). This Tribunal concludes that Complainant failed to meet her burden of proof to establish that Allan violated the charged provision of A.R.S. § 32-1154(A)(2). 4. Allan’s written communication with the Registrar of Contractors on September 6, 2012, failed to include Allan’s license number with preceded by acronym “ROC.” This Tribunal concludes that Allan violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32- 1124(B). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-16.051317-R of Allan shall be suspended until the Registrar of Contractors receives and accepts written proof that Allan has brought all of its communication and business forms into full compliance with the provisions of A.R.S. § 32- 1124(B). It is further recommended that if on or before the effective date of this Order, Respondent fully accomplishes the above described action, then the above provided License suspension shall not take place and that this matter shall be closed. 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, February 11, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of Star Energy Construction LLC’s prior license record as reflected on the Registrar of Contractors’ public website on February 11, 2013. Such prior license record reflects that License No. B-3.273913 of Star Energy Construction LLC was revoked on January 18, 2013, revoked on November 21, 2012, for failure to pay a civil penalty, and revoked on October 25, 2012. [2] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [3] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [4] A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public. [5] 1/25/13 Hearing Record (hereinafter “H.R.”) at 13:45-21:40. [6] H.R. at 21:50-23:20. [7] H.R. at 23:43-33:44.

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