ALJDEC decisions subject to certification as final

2015A-3346-ROC · Registrar of Contractors · 2016-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2016, at 8:00 a.m. APPEARANCES: Kathleen & Stephen Taddie (hereinafter “Complainants”) appeared through Stephen Taddie (hereinafter “Mr. Taddie”). Earth Stone Water LLC, License Nos. 265235, and 279568, failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas ____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(1), 32-1154(A)(3), and 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of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent’s License No. CR21.265235-D was revoked on August 5, 2015. Respondent’s License No. KA-5.279568-D was revoked on August 5, 2015. This is a residential matter in which on or about March 27, 2015, Complainants contracted with Respondent for the construction of a Ramada structure, including the performance of gas and electrical work, at their residence at 6135 N. 38th Street, Paradise Valley, Arizona (hereinafter the “residence”). Respondent initially delayed starting the project even though Complainants had paid the Respondent a fifty percent down payment of $19, 176.00. When the Respondent began work the Complainants noticed that Respondent was damaging their property. When the Complainants complained to the Respondent the Respondent stopped work and left the project leaving the Complainants with an unfinished Ramada and unrepaired damages to their residence. On August 4, 2014, Complainants filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence on August 11, 2015. The Investigator observed that the Respondent had been performing gas and electrical work at Complainants’ residence which is beyond the scope of the Respondent’s licenses. The Investigator observed numerous areas of deficient and unfinished work. The Investigator also observed that the Respondent had damaged a section of Complainants’ perimeter wall. On August 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 three charges: Charge 1: A violation of A.R.S. § 32-1154(A)(1)(“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”).

Charge 2: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 3: A violation of A.R.S. § 32-1154(A)(16) (“Knowingly contracting beyond the scope of the license or licenses of the licensee.”).

The assigned Registrar Investigator, Matt Gunstra (hereinafter “Investigator Gunstra”), testified that he had performed the initial onsite inspection on August 11, 2015. Investigator Gunstra stated that he observed that Respondent had performed gas and electrical work at the jobsite. Investigator Gunstra said that the performance of electrical work and gas work was beyond the scope of Respondent’s licenses. Investigator Gunstra testified that he observed that numerous areas of workmanship by the Respondent that failed to comply with applicable workmanship standards. Investigator Gunstra stated that he observed portions of Complainants’ block wall that Respondent had damaged when it was performing electrical and gas work beyond the scope of Respondent’s licenses. Investigator Gunstra said that the Respondent had a long history of workmanship problems with the Registrar. Investigator Gunstra’s testimony is found to be credible. Mr. Taddie testified that the Respondent delayed starting the project despite the fact that Respondent had received a 50% down payment to begin the construction project at the Complainants’ residence. Mr. Taddie stated that when the Respondent finally started the construction project it was the “most disorganized thing I have ever seen.” Mr. Taddie said that the Respondent’s employees did not seem to know what they were supposed to be doing and that the Respondent failed to provide supervision for its employees. Mr. Taddie said that the Respondent damaged portions of the Complainants’ residence while it was attempting to complete the construction project. Mr. Taddie testified that the Respondent did not disclose that it was not licensed to perform electrical and gas work at the Complainants’ residence. Mr. Taddie stated that despite all of the Respondent’s failures he had been willing to allow the Respondent access to Complainants’ residence to complete the construction project. Mr. Taddie said that the Respondent informed him that the Respondent could not complete the construction project because the Complainants’ money was gone. Mr. Taddie said that the Respondent then abandoned the construction project leaving the Complainants with an unfinished mess. Mr. Taddie opined that Complainants received little of any value from the work performed by the Respondent. Mr. Taddie’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The revoked status of Respondent’s Licenses does not deprive Complainants of their right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainants’ Complaint.[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 Gunstra stated that he observed that Respondent had performed gas and electrical work at the jobsite and that the performance of electrical work and gas work was beyond the scope of Respondent’s licenses. Investigator Gunstra and Mr. Taddie credibly testified that Respondent caused damages to Complainants’ residence while performing construction work at Complainants’ residence. Mr. Taddie credibly testified that Respondent abandoned the construction project leaving the Complainants with an unfinished mess. Complainants established by a preponderance of the evidence that Respondent abandoned the construction project, that Respondent damaged portions of the Complainants’ residence while it was performing electrical and gas plumbing work beyond the scope of Respondent’s licenses. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(1), 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(16). RECOMMENDed order In view of the foregoing, it is recommended that License Nos. CR21.265235-D and KA-5.279568-D of Respondent shall be revoked. 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, January 25, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A). [3] A.R.S. § 32-1154(C). [4]A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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