ALJDEC

98F-2218-ROC · Registrar of Contractors · 1998-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 1998. APPEARANCES: Ronald Sawczyn, Complainant, appeared on behalf of himself and his wife. James Arthur Godwin, Respondent doing business as Nu West Homes and holder of class B license number 101554, failed to appear.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Ronald and Maryann Sawczyn, Complainants, reside at 16628 E. Inca, Fountain Hills, Arizona. 2. James Arthur Godwin, Respondent doing business as Nu West Homes, is holder of class B license number 101554. 3. This matter arises out of Complainants’ charge against Respondent that Respondent engaged in unworkmanlike efforts in constructing Complainants’ home. Respondent failed to appear at the hearing in this matter after being duly notified of the hearing. 4. The parties entered an agreement for the construction of Complainants’ home by Respondent. Complainants moved into their new home on September 1, 1996. 5. Dissatisfied with Respondent’s work, as well as its response to their many complaints, Complainants filed a Complaint with the Registrar on March 1, 1998. In the Complaint, Complainants list numerous items that they claim require corrective measures. 6. On or about April 28, 1998, after inspecting Complainants’ home, Marty Di Antonio, Inspector for the Registrar, issued a Corrective Work Order (“CWO”) ordering Respondent to undertake numerous corrective measures. (See Attachment A). The preponderance of the evidence establishes that the CWO is reasonable and justified. 7. The preponderance of the evidence further demonstrates that Respondent did not perform any corrective measures, in light of the CWO. Indeed, the preponderance of the evidence shows that Respondent abandoned his obligations to perform corrective measures in this matter. 8. On June 8, 1998, after having their home inspected by engineers, Gervasio & Assoc., Inc., Complainant filed with the Registrar an addendum to their Complaint, adding a list of 29 items they contend require correction by Respondent. (See Attachment B). 9. During the hearing in this matter, Inspector Di Antonio and Mr. Sawczyn testified about those matters still requiring corrective measures by Respondent. The preponderance of the evidence demonstrates that all items contained in the CWO, but for items 1, 3, 8, 10, 17, 21-22, 24-25, and 30, still require corrective measures. In addition, all items in Complainant’s addendum, but for items 6, 10, 15-17, 19, 22-23, and 26-29, still require correction.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” 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, 654 (9th Cir. BAP (Ariz.) 1994). 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). 2. Complainants fail their burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainants sustain their burden of demonstrating violations. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainants demonstrate sufficient evidence that Respondent’s actions and/or omissions outlined in paragraphs 6 through 9 of the Findings of Fact above, including the attachments hereto, constitute violations of §§32- 1154A(7) and A(3), namely A.A.C. R4-9-108. 4. With respect to Respondent’s alleged failure to take corrective action, Respondent fails its burden of demonstrating valid justification for its failure to fully comply with the CWO. Respondent’s failure constitutes, therefore, a violation of §32-1154(23).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that, commencing on the effective date of the final order entered in this matter, the Class B license of Respondent be revoked. It is further recommended that Respondent have an opportunity to avoid revocation of his license. If Respondent completes and effectively corrects the items outlined in paragraph 9 of the Findings of Fact above (See Attachments A and B), on or before the final order’s effective date, then no license revocation shall take place and the Citation and Complaint in this matter shall be closed. Done this day, November 17, 1998.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826