ALJDEC decisions subject to certification as final

2015A-843-ROC · Registrar of Contractors · 2015-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2015, at 1:00 p.m. APPEARANCES: Russel W. Warinner (hereinafter “Complainant” or “Mr. Warinner”) appeared on his own behalf. Rana Fire Protection LLC (hereinafter “Respondent” or “Rana Fire”) appeared through its qualifying party, Dean Anthony Rana (hereinafter “Mr. Rana”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(1) 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 1. Respondent is the holder of License Nos. CR16-233792-D and CR5- 235885-D issued by the Registrar. Respondent’s licenses are current. License No. CR16-233792-D was suspended for lack of bond from February 14, 2015 through March 4, 2015. 2. On or about November 13, 2014, Respondent contracted with Complainant to install a residential wet fire sprinkler system in a residence that was going to be remodeled into an adult care center located at 407 Isabelle Ln, Prescott, Arizona, for the total sum of $10,626.66. Complainant paid Respondent the sum of $6,375.99 as a down payment for the construction project. 3. After several months Complainant checked Respondent’s license record with the Registrar and found that it had been suspended. Complainant retained another licensed contractor to install a fire sprinkler system in the residence because the local building authority required that all contractors be properly licensed. Complainant then demanded the return of the $6,375.99 that Complainant had paid Respondent. 4. When the Respondent failed to return the down payment the Complainant filed a formal complaint against the Respondent with the Registrar. 5. On June 16, 2015, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154(A). That Citation contained one charges: A violation of A.R.S. § 32-1154(A)(1).[1]

Testimony 6. Mr. Warinner testified that Complainant hired Respondent to install a fire sprinkler system located at 407 Isabelle Ln. Mr. Warinner said that Complainant gave the Respondent a check up front for $6,375.99 to start the job. Mr. Warinner said that Respondent was supposed to purchase materials for the new sprinkler system. Mr. Warinner said that Respondent failed to deliver any material to the jobsite. 7. Mr. Warinner testified that Complainant’s construction contract required the Respondent to be a properly licensed contractor. Mr. Warinner said that Respondent’s license was suspended “half-way” during the time Respondent was supposed to complete the installation of the fire sprinkler system. Mr. Warinner said that Complainant could not allow the Respondent on the construction site with a suspended license. 8. Mr. Warinner said that after waiting months for Respondent to at least start the installation of the fire sprinkler system he contacted Respondent and Mr. Rana said that the plans had to be perfect before the plans would be approved. Mr. Warinner said that when Respondent’s plans were submitted they were repeatedly rejected by the local building authority. Mr. Warinner said that Complainant was losing money and could not wait any longer. Mr. Warinner said that Complainant then retained an alternate contractor to complete the construction project. 9. Mr. Warinner testified that Respondent performed no construction work for the money that was paid to it and that not construction materials were delivered to the construction site. Mr. Warinner stated that he thought he was hiring a local contractor which the Respondent is not. Mr. Warinner said that Complainant had been unable to obtain service on the Respondent for a civil case that Complainant had filed against Respondent. Mr. Warinner said that Respondent represented that he had purchased materials for the project but in fact had failed to do so. 10. Mr. Warinner’s testimony is found to be credible. 11. Suzanne Warinner (hereinafter “Mrs. Warinner”) testified that she is Mr. Warinner’s mother. Mrs. Warinner stated that after several months of no action by the Respondent she called Mr. Dana on the telephone. Mrs. Warinner said that Respondent’s failure to perform its duties caused the entire project to be delayed and cost the Complainant money. Mrs. Warinner said that she gave the Respondent the alternative of returning Complainant’s money or performing the duties as Respondent had promised. Mrs. Warinner said that Respondent failed to do either one. 12. Mrs. Warinner’s testimony is found to be credible. 13. Mr. Rana testified that when he contacted Complainant and informed Mr. Warinner that the plans had finally been approved by the local building authority, that Mr. Warinner informed him that Complainant had replaced the Respondent with another contractor. Mr. Rana said that Respondent is “Viega” certified out of Nashua New Hampshire. 14. Mr. Rana testified that Respondent uses higher quality materials than its competitors. Mr. Rana said that all plans have to be submitted to the local building authority for approval. Mr. Rana said that delays are to be expected. Mr. Rana said he had the plans completed and the “kicked-back” by the local building authority. 15. Mr. Rana testified that he spoke with Mrs. Warinner and that she gave him additional time. Mr. Rana said that Viega in New Hampshire corresponded with the local building authority via email and made changes to the plans. Mr. Rana said that the re-submitted plans were finally approved by the local building authority on March 2, 2015. Mr. Rana said that he then contacted the Complainant and was informed that another contractor had been hired to perform the work. Mr. Rana said that Respondent received no written warning from the Complainant. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] 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.[3] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Respondent’s License No. CR16-233792-D was suspended for lack of bond from February 14, 2015 through March 4, 2015. Mr. Warinner credibly testified that Respondent’s license was suspended “half-way” during the time Respondent was supposed to complete the installation of the fire sprinkler system. Mr. Warinner said that he could not allow a contractor with a suspended license to perform construction work on the residence. Mr. Warinner credibly testified that when Respondent’s plans were submitted they were repeatedly rejected by the local building authority. Mr. Warinner said that Complainant was losing money and could not wait any longer. Mr. Warinner said that Complainant then retained an alternate contractor to complete the construction project. Mrs. Warinner credibly testified that after several months of no action by the Respondent she called Mr. Dana on the telephone. Mrs. Warinner said that Respondent’s failure to perform its duties caused the entire project to be delayed and cost the Complainant money. Mrs. Warinner said that she gave the Respondent the alternative of returning Complainant’s money or performing the duties as Respondent had promised. Mrs. Warinner testified that Respondent failed to return the money or comply perform any work. Complainant established by a preponderance of the evidence that Respondent abandoned the construction project at issue in violation of the charged provisions of A.R.S. § 32-1154(A)(1). RECOMMENDed order In view of the foregoing, it is recommended that License Nos. CR16- 233792-D and CR5-235885-D of Respondent shall be suspended for a period of twenty (20) 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 11, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(1) 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: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [2] See A.R.S. § 32-1154(A). [3] See A.A.C. R2-19-119. [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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