ALJDEC

01F-Y0026-ROC · Registrar of Contractors · 2001-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2001 APPEARANCES: Complainant Ruben Natal appeared on his own behalf. Respondent Reynoso Construction appeared through its qualifying party, Jose Reynoso. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The issue presented by this matter is whether Respondent Reynoso Construction is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Reynoso Construction (“Reynoso”), a partnership of Jose Ramirez Reynoso (“Jose Reynoso”) and Asuncion Ramirez Reynoso (“Asuncion Reynoso”), is the holder of a Class B- license (No. 108865) issued by the Registrar of Contractors (“ROC”). Jose Reynoso is Reynoso’s qualifying party.

On March 20, 1998, Reynoso entered into a contract with Complainant Ruben Natal for the construction of a new home in Yuma, Arizona. Reynoso substantially completed construction of Mr. Natal’s home in November 1998. On September 15, 2000, Mr. Natal filed a complaint against Reynoso with the ROC. In that complaint, Mr. Natal alleged 20 separate deficiencies in the construction of his home for which he believed Reynoso was responsible. ROC Inspector C.E. “Ed” Jorgensen investigated Mr. Natal’s complaint. On September 28, 2000, Inspector Jorgensen conducted a jobsite inspection at Mr. Natal’s home. Both Mr. Natal and Jose Reynoso were present for that inspection. On October 3, 2000, Inspector Jorgensen issued a Corrective Work Order (“CWO”) under which the ROC gave Reynoso 20 days to correct a number of the deficiencies alleged by Mr. Natal. The items set forth in the CWO are as follows: “1. Door master bedroom swings open: Contractor to adjust door so it does not move to open or close when degree to opening.”

“2. Door, master bath squeaks: Contractor to take whatever steps necessary so door does not squeak.”

“3. Master bedroom closet door: Contractor to adjust so doors function as they were intended, check bottom guide and replace as needed.”

“4. Hall bath, caulking around toilet bowl: Contractor to caulk as needed.”

“5. Hall bath medicine cabinet top: No work for contractor on this item.”

“6. Master bath top deformed: Contractor to add piece of molding and finish as needed.”

“7. Sink cabinet trim plates: No work for contractor on this item.”

“8. Sink drips water: No work for contractor on this item, waste and supply lines are

proper and do not leak water.”

“9. Kitchen counter tops, joints Contractor to take whatever steps necessary to adjust joints and properly seal.”

“10. Kitchen cabinet doors squeak: Contractor to take whatever steps necessary to cure squeaking doors.”

“11. Chipping paint kitchen cabinets: No work for contractor on this item, normal wear in the opinion of the undersigned.”

“12. Bottoms of kitchen cabinets: Contractor to paint bottoms so they are all evenly in color.”

“13. Bottom of bar counter, paint: Contractor to paint bottom of bar top.”

“14. Kitchen cabinets: Contractor to caulk as needed.”

“15. Floor cracked, lifting: Contractor to properly repair as needed.”

“16. Cracked ceramic floor tile: Contractor to replace any broken or cracked ceramic floor tiles as needed.”

“17. Entrance, standing water: No work for contractor on this item.”

“18. Concrete driveway crack north side by walkway: Contractor to properly repair or replace.”

“19. Hot water heater: No work for contractor on this item, hot water heater appears to the undersigned to be properly installed and of proper size, 40 gallon.”

“20. Broken ceramic roof tiles: No work for contractor on this item, work has been done and is satisfactory.”

As to CWO items 1, 2, 3, 4, 6, 9, 10, 12, 13, 14, 15, 16 and 18, the Administrative Law Judge finds, based on Inspector Jorgensen’s testimony at hearing (none of which was contradicted), that each of these items fails to conform with minimum workmanship standards applicable to licensed contractors in the State of Arizona (“Arizona’s minimum workmanship standards”). Inspector Jorgensen found CWO items 5, 7, 8, 11 and 20 to fall within Arizona’s minimum workmanship standards. Mr. Natal offered no evidence at hearing to contradict Inspector Jorgensen’s findings. The Administrative Law Judge finds, based on this record, that CWO items 5, 7, 8, 11 and 20 conform to Arizona’s minimum workmanship standards. As to CWO item 17, the evidence demonstrated that during rainstorms, water pools on a tiled area at the entryway to Mr. Natal’s house and runs back towards the house. Inspector Jorgensen attributed this deficiency to a problem with the design of Mr. Natal’s home as opposed to a workmanship issue, and therefore determined that no corrective action was required. Mr. Natal did not present any evidence demonstrating or tending to demonstrate that the pooling of water at his entryway is attributable to a deficiency in Reynoso’s work. As to CWO item 19, the evidence demonstrated that Mr. Natal’s water heater does not function properly. Mr. Natal credibly testified that it takes upwards of 20 minutes for water at his home to heat up. Inspector Jorgensen credibly testified that Mr. Natal’s water heater had been properly installed. Mr. Natal did not present any evidence demonstrating or tending to demonstrate that the improper functioning of his water heater is attributable to a deficiency in Reynoso’s work. The Administrative Law Judge finds, on the weight of the credible evidence, that after Inspector Jorgensen issued the CWO, Reynoso failed to contact Mr. Natal to make arrangements for completing the required corrective work until October 23, 2000, the last available day for compliance. On that date, Asuncion Reynoso called Mr. Natal at 6:58 p.m. to advise Mr. Natal that Reynoso would be coming to the house the following day to complete the corrective work items. Because Reynoso had failed to meet the 20-day limit set forth in the CWO to complete the corrective work, Mr. Natal advised Asuncion Reynoso that he was not going to permit Reynoso to perform any work until he had spoken with Mr. Jorgensen and determined what his options were. On October 25, 2000, Jose Reynoso transmitted a letter to Mr. Natal asserting that Reynoso had, on “many occasions,” attempted to contact Mr. Natal to perform the corrective work. Jose Reynoso wrote, “[w]e would be more than happy to take care of the matter if you give us the opportunity.” [See Exhibit A] At hearing, both Jose Reynoso and Asuncion Reynoso testified that Reynoso went to Mr. Natal’s house on several occasions during the CWO’s 20- day period to perform the corrective work, and that on each occasion their knocks on Mr. Natal’s door went unanswered. The Administrative Law Judge did not find this testimony to be credible. In addition, Mr. Natal’s wife, Laticia, credibly testified that she was home during the majority of this time, and that to her knowledge no one from Reynoso ever came to the house. Based on the foregoing, the Administrative Law Judge finds that Reynoso failed to comply with the CWO. Consequently, Mr. Natal did not deny access to Reynoso when, after the CWO’s 20-day period had run, he declined to permit Reynoso to perform any work until he determined what his options were. One of those options was to proceed to hearing, and Mr. Natal was within his rights to elect this option. On November 29, 2000, the ROC issued a Citation and Complaint charging Reynoso with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action in response to written ROC directive) and (A)(3) (violation of any rule adopted by the ROC, in this case, Rule R4-9- 108 covering workmanship standards). CONCLUSIONS OF LAW In this proceeding, Mr. Natal bears the burden to prove, by a preponderance of the evidence, that Reynoso is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Natal met his burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Reynoso with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The weight of the credible evidence demonstrated that as to CWO items 1, 2, 3, 4, 6, 9, 10, 12, 13, 14, 15, 16 and 18, Reynoso failed to perform its work in a professional and workmanlike manner, and in so doing violated A.A.C. R4-9-108. Therefore, Reynoso violated A.R.S. § 32-1154(A)(3).[1] Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” In accordance with A.R.S. § 32-1154(D), the ROC may impose a civil penalty on Reynoso not to exceed $500.00 for each violation of A.R.S. § 32-1154(A)(23). The Administrative Law Judge concludes, from the evidence presented, that Reynoso failed to comply with the ROC’s October 3, 2000 CWO, and that Reynoso did not offer any valid justification for that failure. Therefore, Reynoso violated A.R.S. § 32-1154(A)(23). As stated above in Finding of Fact No. 16, Reynoso did not contact Mr. Natal to make arrangements for completing the required corrective work until 6:58 p.m. on October 23, 2000, the last available day for compliance. Reynoso claimed that it had attempted to contact Mr. Natal previously, but Reynoso’s evidence in support of this claim was not credible. At a minimum, Reynoso should have called Mr. Natal promptly after the issuance of the CWO to arrange a time to perform the corrective work. Reynoso failed to do so. The circumstances of Reynoso’s failure to comply with the CWO demonstrates a disregard both for Mr. Natal’s need to have the corrective work performed, and for the ROC’s regulatory authority. Under these circumstances, the Administrative Law Judge concludes that the ROC should impose a $250.00 civil penalty against Reynoso for Reynoso’s violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Reynoso committed a wrongful act by failing to perform its work at Mr. Natal’s home in a workmanlike manner, and by thereafter failing to comply with a written directive of the ROC to correct that work. Reynoso’s conduct substantially injured Mr. Natal by causing undue delay in the completion of required corrective work at Mr. Natal’s home. Therefore, Reynoso violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Reynoso’s license. The ROC’s November 29, 2000 Citation and Complaint advised Reynoso that in the event of a finding of a violation against it, Reynoso’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Reynoso in the ROC’s official records. Those records revealed the absence of any final ROC orders against Reynoso within the last two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Reynoso’s Class B- license should be suspended. The Registrar of Contractors’ authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Reynoso’s license without providing a condition to reduce or eliminate same. Upon consideration of all the evidence, the Administrative Law Judge concludes that it is reasonable to condition Reynoso’s license suspension upon completion of the corrective work required under the CWO (i.e., items 1, 2, 3, 4, 6, 9, 10, 12, 13, 14, 15, 16 and 18). RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Commencing on the effective date of the Order entered in this matter, Reynoso’s Class B- license shall be suspended until the ROC receives credible written proof that Reynoso has complied with one of the following alternative conditions: 1. Reynoso has completed CWO items 1, 2, 3, 4, 6, 9, 10, 12, 13, 14, 15, 16 and 18 in a professional and workmanlike manner; OR 2. Reynoso has entered into other mutually acceptable arrangements with Mr. Natal. If the ROC receives credible written proof that Reynoso has complied with one of the foregoing conditions on or before the deadline identified above, then the above provided license suspension shall not take place. In addition to the above-provided penalty, if any, Reynoso shall pay to the Registrar of Contractors, on or before the effective date of the Order entered in this matter, the sum of $250.00 by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Reynoso to pay the entire amount of the aforesaid civil penalty on or before the effective date of the Order entered in this matter shall result in the automatic revocation of Reynoso’s contractor’s license, effective on such deadline date. No future license shall be issued to an entity consisting of any person associated with Reynoso, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, May 7, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] As to CWO items 5, 7, 8, 11, 17, 19 and 20, the Administrative Law Judge concludes, based on the evidence presented, that Reynoso did not fail to perform its work in a professional and workmanlike manner.

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