ALJDEC decisions subject to certification as final

06F-A0420-ROC · Registrar of Contractors · 2007-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2006 APPEARANCES: Complainant Nancy Seriani appeared on behalf of Complainants Nancy Seriani and Jackson West; Thomas Johnson, Respondent’s general manager, qualifying party and authorized representative, appeared on behalf of Respondent Coast to Coast Carports Inc. ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________ The issue presented by this matter is whether Respondent Coast to Coast Carports Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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 1. Respondent Coast to Coast Carports Inc. (“Respondent”) is the holder of a Class C-03 License (No. 201748) issued by the Registrar of Contractors (“ROC”). Thomas Johnson is Respondent’s general manager, authorized representative and qualifying party. 2. Complainants Jackson West and Nancy Seriani own a home located at 18473 John Fry, Peeples Valley, Arizona (the “Home”). 3. On November 22, 2005, Complainants and Respondent entered into a contract for Respondent to construct a stand-alone garage (“Garage”) at the Home. The total contract price was $5,062.26. Complainants initially paid a deposit of $476.00. Complainants were to prepare the ground and provide the slab. Respondent’s workers would then construct the Garage on Complainants’ slab. Complainants readied the area for the Garage. 4. On December 5, 2005, Complainants received a call from Respondent’s employee “Stephanie” to verify Complainants’ order, confirm the payment details, and notify Complainants that Respondent’s crew would be at the Home to construct the Garage on December 9, 2005.[1] 5. Respondent’s crew arrived at approximately 4:00 p.m. on December 9, 2005 and worked constructing the Garage until almost 11:30 p.m. The crew did not speak English, according to Ms. Seriani, making it very difficult to communicate. The crew performed most of its work after dark. The crew brought only one small light to illuminate the area. Complainants provided some additional lighting for the crew. When the crew finished, Complainants paid the remaining balance of $4,586.26 by way of a cashier’s check pursuant to Stephanie’s instructions. Due to the darkness, Complainants could not properly inspect the Garage. The crew required Complainants to sign off that the job was complete. Complainants felt uncomfortable doing so but ultimately signed the paperwork, noting the circumstances at the bottom of the paper. 6. On December 10, 2005, Complainants inspected the building in the morning. They immediately called Respondent to voice their concerns about the Garage. They noted several issues with the Garage including the fact that the roll up door did not function properly.[2] 7. Complainants made numerous phone calls, first to Stephanie and then to “Michelle” and “Nicki,” also employees of Respondent, seeking correction of the problems with the Garage. Although, according to Complainants, many promises were made, Respondent did not follow through and make all of the necessary repairs. As a result, Complainants continued to be dissatisfied with the condition of the Garage Respondent had constructed at the Home. 8. On February 21, 2006, Complainants filed the instant Complaint against Respondent with the ROC. Complainants attached a five page hand- written letter describing the circumstances of the Garage construction and outlining their complaints. Essentially, Complainants complained of improper workmanship and failure to correct the deficiencies. 9. ROC Inspector Dan LaFond investigated the Complaint. Inspector LaFond conducted two jobsite inspections at the Home. 10. On April 4, 2006, Inspector LaFond issued a Corrective Work Order (“CWO”). The CWO, reproduced in pertinent part, stated: Contractor shall determine the cause of the following complaint items and correct by appropriate means.

2. Improper fit of the west side roof panel. 4. Bent panel at the north window. 5. Scratched panels. 6. Missing welds on the collar tie.

11. Although Respondent eventually replaced some panels on the Garage, Complainants contended that in so doing Respondent made the problems worse. It is undisputed that the four items noted above from the CWO remained uncorrected as of the hearing date. 12. On April 26, 2006, Complainants requested the instant administrative hearing. 13. On June 23, 2006, the ROC issued Citation and Complaint No. A06- 0420 against Respondent, alleging that Respondent had violated A.R.S. § 32- 1154(A)(2), (A)(3), (A)(7), (A)(17), and (A)(23). 14. On July 3, 2006, Respondent filed a written Answer to the Citation and Complaint. 15. Inspector John Prince replaced Inspector LaFond as the ROC Inspector assigned to this matter. On December 19, 2006, Inspector Prince conducted a pre-hearing inspection at the Home. In addition to Inspector Prince, Complainants and Mr. Johnson were present for the pre-hearing inspection. 16. The instant administrative hearing took place on December 21, 2006. 17. Ms. Seriani and Inspector Prince testified to the above described facts. 18. At hearing, Complainants contended that Respondent failed to construct the Garage in a workmanlike manner and failed to correct all items as required by the CWO. Additionally, Complainants contended that Respondent used the wrong gauge of steel panels in constructing the Garage. Complainants stated that they have lost confidence in Respondent’s workmanship and trustworthiness. Moreover, Complainants do not wish to have Respondent perform any additional work on the Garage. 19. Respondent acknowledged that some items on the Garage require “minor” corrections. Respondent suggested as one possible resolution that it remove the Garage and refund Complainants’ money. Complainants did not agree with Respondent’s suggested resolution. 20. Inspector Prince issued a written pre-hearing inspection memorandum and testified consistently therewith. Inspector Prince testified that he agreed with Inspector LaFond’s opinions concerning CWO items 2, 4, 5, and 6. At the pre-hearing inspection, Inspector Prince found Respondent’s work on these items did not comply with applicable workmanship standards and required correction. Inspector Prince testified that, as to Item # 2, he could see daylight from inside of the Garage from back to front. As to Item # 4, he noted a bent panel at the north window. As to Item # 5, he noted scratches and gouges at various locations on all sides of the Garage that appeared to be caused by dragging the panels. Additionally, as to Item # 6, he testified that, unlike all other collar ties, the third collar tie from the back was welded on both sides, but not on the front and back. Finally, Inspector Prince noted that Inspector LaFond’s notes indicated that 12 gauge steel was contracted, but 14 gauge steel was used to construct the Garage. Complainants did not present any evidence concerning the impact of a change from 12 gauge to 14 gauge steel. 21. The Administrative Law Judge finds that Respondent did not perform the contracted work in a proper and workmanlike manner. The Administrative Law Judge also finds that Respondent failed to correct Items 2, 4, 5, and 6 as required by the CWO. 22. Complainants did not produce any evidence to establish that Respondent contracted beyond the scope of its C-03 License. CONCLUSIONS OF LAW 1. In this administrative proceeding, Complainants bear the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), (A)(17), and/or (A)(23). See A.A.C. R2-19- 119. 2. 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). 3. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes of the state . . . in any material respect which is prejudicial to another without consent of the owner . . . and without consent of the person entitled to have the particular construction project or operation completed in accordance with such plans or specifications . . . .” The Administrative Law Judge concludes that Complainants established that Respondent deviated from the contract specifications by using 14 gauge steel panels rather than 12 gauge. However, Complainants failed to establish that Respondent’s use of 14 gauge steel constituted a “material” departure from the contract. Therefore, the Administrative Law Judge concludes Respondent has not violated A.R.S. § 32- 1154(A)(2). 4. 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 Respondent with violating 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 professional industry standards. The Administrative Law Judge concludes that Complainants established that Respondent failed to comply with applicable workmanship standards with respect the CWO items listed in Findings of Fact 21. Therefore, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A)(3) as to those items. 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . resulting in another person being substantially injured.” The Administrative Law Judge concludes that Complainants established that Respondent committed a wrongful or fraudulent act that substantially injured Complainants. Respondent’s failure to perform work in a workmanlike manner (as described in Conclusions of Law ¶ 4), and failure to perform appropriate corrective work (as described in Conclusions of Law ¶ 7) collectively constitute said acts. Consequently, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A)(7). 6. Under A.R.S. § 32-1154(A)(17), a contractor is subject to discipline for “knowingly contracting beyond the scope of the license or licenses of the licensee.” The Administrative Law Judge concludes that Complainants failed to establish that Respondent performed work beyond the scope of its license. Consequently, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(17). 7. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “fail[ing] to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the Registrar.” The evidence at hearing established that Respondent did not correct items 2, 4, 5, or 6 from the CWO. Respondent acknowledged that it did not correct those items and that correction was needed. Consequently, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A)(23). 8. Upon consideration of the foregoing, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A), and that grounds exist to impose discipline against Respondent’s Class C-03 License (No. 201748). RECOMMENDED ORDER The Administrative Law Judge recommends that on the effective date of the Order entered in this matter, Respondent’s Class C-03 License (No. 201748) be suspended until the ROC receives written proof that Respondent has, through a properly licensed contractor, in a proper and workmanlike manner and at Respondent’s sole cost and expense, complied with CWO items 2, 4, 5, and 6. If, on or before the effective date of the Order, the ROC has received written proof that Respondent has had the foregoing corrective work performed, then no suspension will take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-03 License be placed on disciplinary probation for a period of one hundred twenty (120) days. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $350.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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 40 days from the date of that certification. Done this day, January 4, 2007.

______________________________________ Marianne T. Bayardi Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Complainants did not know Stephanie’s last name. [2] Eventually, and prior to the instant hearing, Respondent corrected the Garage door. As such, that issue is not addressed further herein.

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