ALJDEC decisions subject to certification as final

2014A-4751-ROC · Registrar of Contractors · 2015-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2015, at 10:00 a.m. APPEARANCES: Carol R. Espinoza (hereinafter “Complainant” or “Ms. Espinoza”) appeared on her own behalf. Ivan Pat Mooney DBA: Sav On Home Improvement, License Nos. CR57.259636-D and CR34.277974-D (hereinafter “Respondent” or “Mr. Mooney”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(16) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License Nos. CR57.259636-D[1] and CR34.277974- D[2] issued by the Registrar. Respondent’s Licenses are current. This is a residential matter in which on or about November 30, 2012, Complainant entered into an agreement with Respondent for the performance of water restoration work at her residence located at 2558 E. Summit Place, Mesa, Arizona (hereinafter the “residence”). During the course of construction the Complainant notified Respondent of numerous problems with the restoration work and requested appropriate corrections. Respondent failed to correct the construction work to Complainant’s satisfaction. On or about November 30, 2014, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence on December 18, 2014. At the onset inspection the Complainant asked that the Respondent not be present in her residence for the inspection. The Investigator reviewed the complaint items with the Respondent after the onsite inspection. The assigned agency Investigator substantiated numerous items of either substandard workmanship or unfinished work. However, no Directive was issued at the Complainant’s request as she was unwilling to have the Respondent back in her residence. The assigned agency Investigator noted that Complainant alleged that all of her construction agreements with Respondent were verbal and that she paid Respondent in cash and that the Respondent denied all of Complainant’s allegations. The assigned agency Investigator found that the Respondent had provided the Complainant with an invoice for four (4) plumbing items and labor for the plumber. Respondent informed the Investigator that he had provided the invoice to the Complainant so that the plumber could get paid. On June 26, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 1: A violation of A.R.S. § 32-1154(A)(16) (“Knowingly contracting beyond the scope of the license or licenses of the licensee.”).

Testimony Ms. Espinoza testified that the only person she hired to work on her residence was the Respondent. Ms. Espinoza stated that the Respondent had started water reconstruction work on her residence before she hired him. Ms. Espinoza said that the all of the individuals that worked on her residence were hired by the Respondent. Ms. Espinoza said that she signed a contract with Respondent under duress. Ms. Espinoza said that Respondent failed to complete his work and that the few items of construction work that were completed were unsatisfactory. Ms. Espinoza said that the Respondent was given a total of $12,482.52 for his work on the residence. Ms. Espinoza said that she was not willing to allow the Respondent back into her residence because she was afraid of him. Ms. Espinoza’s testimony is found to be credible. The assigned Registrar Investigator, Steven Nelson (hereinafter “Investigator Nelson”), testified that he had performed the initial onsite inspection and that he would have prepared a written Directive if the Complainant would have been willing to allow the Respondent into her residence to perform corrective work. Investigator Nelson reviewed the numerous items of construction work that he observed to be either incomplete or to fail to comply with applicable workmanship standards. Investigator Nelson stated that he found evidence that the Respondent had provided the Complainant with an invoice for four (4) plumbing items and labor for the plumber. Investigator Nelson said that the Respondent had knowingly contracted beyond the scope of Respondent’s licenses. Investigator Nelson’s testimony is found to be credible. Mr. Mooney testified that he was only trying to help the Complainant. Mr. Mooney stated that the Complainant had a dangerous mold problem in her residence. Mr. Mooney acknowledged that he performed mold remediation and dry-out repairs on Complainant’s residence but denied doing anything else. Mr. Mooney acknowledged that he had given the Complainant an invoice for plumbing repairs. Mr. Mooney said that he only provided the invoice so that the plumber could get paid. Mr. Mooney denied that he had hired the plumber. Mr. Mooney said that the plumber was working for the Complainant not the Respondent. Mr. Mooney denied hiring anyone to work on Complainant’s residence. Mr. Mooney said that all of the individuals that worked on the residence were hired and paid by the Complainant. Mr. Mooney denied that he had contracted beyond the scope of his licenses. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] 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.[4] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Investigator Nelson credibly testified he found evidence that the Respondent had provided the Complainant with an invoice for four (4) plumbing items and labor for the plumber. Investigator Nelson credibly stated that the Respondent had knowingly contracted beyond the scope of Respondent’s licenses. Ms. Espinoza credibly testified that the all of the individuals that worked on her residence were hired by the Respondent. Complainant established by a preponderance of the evidence that Respondent knowingly contracted beyond the scope of Respondent’s licenses. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(16). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License Nos. CR57.259636-D and CR34.277974-D of Respondent shall be suspended for thirty (30) days. 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 five days from the date of the certification. Done this day, December 22, 2015. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This classification allows the licensee to install or repair temporary ramps, barricades, and pedestrian walkways as required for the licensee to demolish, dismantle, or remove structures not intended for reuse. This classification does not allow the licensee to use explosives. [2] This classification allows the licensee to perform surface preparation, caulking, drywall patching, drywall taping, sanding, and cleaning as required for the licensee to install, apply or repair: 1. Wallpaper 2. Wall covering cloth 3. Wall covering vinyl 4. Decorative texture 5. Paint [3] A.R.S. § 32-1154(A). [4] A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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