ALJDEC decisions subject to certification as final

2015A-186-ROC · Registrar of Contractors · 2015-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2015, at 8:00 a.m. APPEARANCES: Best Deal Landscaping LLC (hereinafter “Complainant” or “Best Deal”) appeared through its owner Dennis DeCarmine. Advanced Interior Systems, Inc. (hereinafter “Respondent” or “Advanced”), appeared through its owner, Douglas Schmeling (hereinafter “Mr. Schmeling”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(10) 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 No. KB2-246093-D issued by the Registrar. Respondent’s license is current. This is a residential matter in which on or about May 1, 2015, Complainant contracted with Respondent to install a concrete driveway at Mr. Schmeling’s residence located at 1814 East Evergreen Street, Mesa, Arizona. On or about January 13, 2015, the Registrar received a Complaint from the Complainant against the Respondent alleging that the Respondent had failed to pay the Complainant $3,000.00 for construction work that Complainant had performed at Mr. Schmeling’s residence. When the Respondent failed to pay the money that was allegedly due the Complainant requested that the Registrar issue a Citation against Respondent’s license. On June 16, 2015, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154(A). That Citation contained one charge: A violation of A.R.S. § 32-1154(A)(10).[1]

On October 15, 2015, an administrative hearing was held by the Office of Administrative Hearings for Docket No. 2015A-113-ROC for Advanced’s workmanship complaint against Best Deal. On November 4, 2015, Administrative Law Judge T. Eigenheer concluded, in relevant part, as follows: The evidence established that Respondent failed to properly install the concrete driveway by failing to install expansion joints, failing to properly slope the driveway away from the house, and failing to saw cut the driveway. The additional notes in the new draft of the contract that was not signed by Complainant and that Dennis DeCarmine admitted he amended after he realized there may be an issue with the project does not nullify Respondent’s responsibility to properly install the driveway in conformity with workmanship standards. Therefore, Complainant established Respondent’s work was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, [2] and thereby of A.R.S. § 32-1154(A)(3).

Administrative Law Judge T. Eigenheer recommended as follows: Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Best Deal Landscaping LLC’s License No. CR21.293625- D for a period of 30 days. It is further recommended that in addition to the suspension, Respondent’s License shall be placed on disciplinary probation for a period of 180 days commencing on the expiration of the 30-day suspension.

The Registrar has not yet issued a final Order in Docket No. 2015A-113-ROC. Testimony Mr. DeCarmine testified that he installed the driveway at Mr. Schmeling’s residence in a proper and workmanlike manner in accordance with the parties’ construction agreement. Mr. DeCarmine stated that Respondent had failed to pay Complainant in full for the completed construction project in accordance with the parties’ construction agreement. Mr. DeCarmin asserted that any workmanship issues with Complainant’s work were caused by the Respondent’s errors in construction. Mr. Schmeling acknowledged that the Respondent had contracted with Complainant for construction work at Mr. Schmeling’s personal residence. Mr. Schmeling asserted that no money was owed to the Complainant. Mr. Schmeling testified that the Complainant failed to perform its construction work in a workmanlike manner and that the entire driveway was going to have to be removed and replaced. Mr. Schmeling stated that Complainant improperly poured and graded the concrete driveway resulting in excessive water ponding and that Complainant failed to install expansion joints. Mr. Schmeling produced two estimates from licensed contractors for the removal and replacement of the driveway both of which exceeded the original contract amount with the Complainant. Mr. Schmeling’s testimony is found to be credible. 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] Mr. Schmeling credibly testified that the Complainant failed to perform its construction work in a workmanlike manner and that the entire driveway was going to have to be removed and replaced. Mr. Schmeling produced two estimates from licensed contractors for the removal and replacement of the driveway both of which exceeded the original contract amount with the Complainant. This Tribunal concludes that the preponderance of the evidence is insufficient and fails to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154(A)(10). Consequently, this matter should be dismissed. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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 10, 2015. /s/ M. Douglas Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(10) provides, in relevant part, as follows: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] See A.R.S. § 32-1154(A). [4] See A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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