ALJDEC decisions subject to certification as final

2016A-161-ROC · Registrar of Contractors · 2016-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2016 APPEARANCES: Kenneth M. Pellerin, Complainant, and Michael Lussier on behalf of Lussier, LLC. Stephen N. Lawton for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT 1. Lussier, LLC, (Respondent), is the holder of License Number 300270 issued by the Registrar of Contractors (Registrar). 2. On or about February 9, 2015, Kenneth M. Pellerin (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to timely complete the remodeling project at 20283 W. Springfield St., in Buckeye, Arizona (Buckeye residence), had overcharged for the project, and that there were various workmanship issues on the project. Complainant also alleged that Respondent was unlicensed and had bid the job under License Number 195306, which, according to Registrar records, was an expired license of a licensee unrelated to Respondent. 3. On April 1, 2016, the Registrar performed an inspection of the project and on April 13, 2016, the Registrar issued a Directive advising that a permit was required for the work done at the Buckeye residence and that in connection with applying for that permit, if the local jurisdiction during an inspection required any corrective measures, Respondent was required to undertake those corrective measures. The Directive stated that any workmanship violations alleged in the Complaint but not listed in the directive were unsubstantiated and did not require corrective action. There were no corrective measures listed in the Directive. 4. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(2), A(3), and A(19), dated May 2, 2016. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing setting a hearing for July 15, 2016, at 10:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 19, 2016, at its address of record. 6. A hearing was held on July 15, 2016, at 10:00 a.m. Complainant testified and presented the testimony of Thomas Brown. Respondent presented the testimony of Michael Lussier and Phyllis Lussier. Stephen Lawton appeared and testified on behalf of the Registrar. 7. Mr. Pellerin testified that he accepted Respondent’s bid dated October 18, 2014, for remodeling at the Buckeye residence. He further testified that while there were workmanship issues earlier in the project, the workmanship was good and that all the perceived workmanship issues were resolved. He further testified as to the delay in the project and what he believed to be excessive additional costs for the changes to the plans and specifications. 8. Mr. Lawton of the Registrar testified that the city of Buckeye issued a permit for the Buckeye residence project on July 5, 2016, and that there were no corrective measures required by the city of Buckeye. Therefore, Respondent had complied with the Directive. 9. Mr. Lussier testified that Respondent was issued a Class B residential contractors license on July 10, 2015. He further testified that the alleged delay and additional costs were due to the changes made by Complainant to the original plans and specifications. 10. Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 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 preponderance of the evidence. See A.A.C. R2-19-119. 3. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990) 4. Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2), A(3), or A(19). There was no evidence presented that Respondent departed from or disregarded any plans or specifications or any building codes. There was no evidence presented that there were any remaining workmanship issues; to the contrary, Complainant admitted that all such issues had been resolved. There was no evidence presented that there was any subsequent discovery of facts that if known at the time of issuance of Respondent’s license would have been grounds to deny the issuance of the license. 5. The issue concerning the alleged delay in completing the project is not the subject of this disciplinary proceeding. The issue of the alleged additional costs to complete the project due to the changes made by Complainant to the original plans and specifications is also not part of this disciplinary proceeding. Moreover, both parties testified that the parties met and agreed to a final price to be paid from Complainant to Respondent. 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, August 4, 2016.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826