ALJDEC

00F-Y0118-ROC-COM · Registrar of Contractors · 2001-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: July 19, 2001 at 8:30 a.m. APPEARANCES: Complainants Albert and Aida Urbieta appeared through William S. Dieckhoff, Esq.; Respondent Riverfront Development Associates, Inc. appeared through Ted Bowen, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence with respect to whether Respondent complied with the Registrar’s final decision and order in this matter, which was based on the parties’ settlement at hearing. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Registrar of Contractors. FINDINGS OF FACT Background A hearing was held on October 4, 2000 on Complainants’ numerous complaints about Respondent’s construction of their residence. During the hearing, the parties agreed that Respondent would correct 24 specific items of complaint, described in Inspector C.E. Jorgensen’s directive, that Complainants would accept 62 specific items of complaint, and that Complainants would withdraw their complaint to the Registrar with respect specific items and reserve resolution of those items in the civil proceeding then pending between these parties in superior court. The Administrative Law Judge commemorated the parties’ settlement in a recommended decision, which the Registrar adopted on October 26, 2000. Complainants filed a motion for rehearing concerning certain language in the decision not included in the settlement, Respondent objected to the motion, and the Registrar struck the language on which Complainants requested rehearing from his decision. On January 30, 2001, the Registrar received Complainants’ request for a compliance inspection. The Registrar’s Inspector C.E. Jorgensen performed a compliance inspection on February 27, 2001, and, on April 10, 2001, the Registrar issued a notice of compliance hearing. A hearing was held as noticed on July 19, 2001, at which both parties and Inspector Jorgensen testified. The Registrar’s record reveals that Respondent’s contractor’s License No. 127103, Class B-, was revoked on July 14, 2001, five days before the compliance hearing, as a result of its failures to pay subcontractors and suppliers.[1] Hearing Evidence Inspector Jorgensen testified that he had performed a compliance inspection on February 27, 2001, which Complainants but not Respondent had attended. As a result of this inspection, Inspector Jorgensen had issued a report that none of the 24 items had been corrected adequately. Inspector Jorgensen did note that it appeared that someone had started to correct Items L5 (item 13(r) on the Registrar’s order, straightening wall in laundry room and repairing it so that the counter met the backsplash) and L8 (item 13(t) on the Registrar’s order, installing doors in front of air conditioner and water heater in laundry room that match), but had not finished. Respondent’s qualifying party, Dennis Harris, testified that, prior to Inspector Jorgensen’s compliance inspection, Respondent’s painting subcontractor Jim Ward Painting had corrected items 13(a), (d), (h), (i), (p), and (q), except that Riverfront’s employee performed the texturing; its stucco subcontractor Kenyon Construction had corrected items 13(b), (o), (w), and (x); and its tile subcontractor Cactus Flooring had corrected item 13(k), (l), (n), and (r). Mr. Harris had received letters from all three subcontractors attesting to completion. Mr. Harris testified that, prior to February 27, 2001, he sent Respondent’s employee Bill Hayward and, perhaps, its employee Felipe Herrera to correct items (c), (g), (j), (m), (q) (texturing), (s), and (u). Mr. Harris personally saw Mr. Hayward begin correcting items 13(r), which, as noted above, was one of the items of correction that Inspector Jorgensen had noted had been started but not finished on his compliance inspection report. Mr. Harris did not return to the jobsite to verify that Jim Ward Painting, Kenyon Construction, Cactus Flooring, or Messrs. Hayward and, possibly, Herrera had completed the repairs. During October and November, 2000, when Mr. Harris believed the repairs were done, he was in the process of winding down Respondent’s business and looking for a job to support his family. Mr. Harris testified that Respondent could not repair items 13(e) and (f), which involved kitchen cabinets and countertops, because its subcontractor Southwest Cabinets had gone out of business and Mr. Harris could not contact it. Mr. Harris testified that Respondent did not complete repair item 13(t), which involved installing doors in front of air conditioner and water heater in laundry room that matched, because the door he purchased from the supplier also did not match. He could not afford to buy a third door. As noted above, Inspector Jorgensen noted a partial repair of this item on his compliance inspection report. Finally, Mr. Harris testified that he personally corrected item 13(v), an unbalanced closet door, when he met with Complainants at their home approximately two weeks after the hearing. He did not need to reframe the closet door because the gap could be correct with a minor adjustment. Complainant Mr. Urbieta testified that Mr. Harris’ adjustment did not adequately repair the closet door. There is still an unsightly gap. Complainant Mrs. Urbieta credibly testified that none of Respondent’s subcontractors ever came to her home to perform repairs. Respondent’s employee Bill Hayward came to the residence twice, on October 14, 2000, for about 30 minutes, and on November 14, 2000, for about 20 minutes. Although Mr. Hayward started repairing the wall and doors in the laundry room, he did not complete any repairs. On November 14, 2000, Mr. Hayward told Mrs. Urbieta that he would not be back because he did not work for Respondent anymore. CONCLUSIONS OF LAW In this compliance hearing, Respondent bears the burden of proof to establish that he complied with the Registrar’s final order in Complainants’ workmanship complaint by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[4] The evidence does not establish that Respondent has complied with the Registrar’s order or the terms of the parties’ settlement in this matter. RECOMMENDED ORDER Based on the foregoing, and in light of the revoked status of Respondent Riverfront Development Associates’ License No. 127103, Class B-,

It is recommended that Complainants be allowed to make a claim to the Residential Contractors’ Recovery Fund under A.R.S. § 32-1132 in the amount of the damages that they are able establish that they suffered as a result of Respondent’s contracting law violations. Done this day, July 23, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of July, 2001, to:

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

By ___________________________

----------------------- [1] See Case Nos. Y01-0125, Y01-0034, Y00-0097, and Y00-0013. [2] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[4] Black’s Law Dictionary at page 1064 (6th ed. 1990).

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