ALJDEC decisions subject to certification as final

06F-M0267-ROC · Registrar of Contractors · 2007-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2007 at 9:00 a.m. APPEARANCES: Complainant Carole Roth appeared on her own behalf; Respondent Montessa Homes LLC did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On April 28, 2003, the Registrar issued License No. ROC184712 to Respondent Montessa Homes, LLC, a limited liability company. The license was renewed on June 24, 2005. 2. On August 9, 2005, the Registrar received Complainant Carole Roth’s complaint against Respondent’s license which alleged numerous workmanship deficiencies and improprieties in its construction of the residence she had moved into in May 2005. Complainant made several addendums to the complaint over the next year and a half. 3. After Respondent repaired some of the items of complaint and both parties submitted various pieces of correspondence to the Registrar, but did not completely resolve their dispute, the Registrar’s Inspector Ted Gerold performed a jobsite inspection on January 23, 2007. 4. On January 23, 2007, Inspector Gerold issued a Corrective Work Order, directing Respondent “to correct plumbing ‘knocking’ coming from master bath vanity, by appropriate means.” 5. On February 9, 2007, Complainant requested a hearing. 6. On April 30, 2007, Respondent’s license lapsed when it failed to timely renew it. 7. On May 1, 2007, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(2), (7), (23), and (3) (namely A.A.C. R4-9-108). The Registrar sent the Citation and Complaint to Respondent at previously provided addresses in Inverness, FL, Chandler, AZ, and Heber, AZ. 8. On May 14, 2007, Respondent filed a written answer to the Citation and Complaint, which alleged that “[w]e have already repaired all items through a 3rd party contractor” and that “Montessa Homes, LLC has not renewed registration with Registrar and is no longer doing business.” 9. The Registrar referred the matter to the Office of Administrative Hearings and issued a Notice of Hearing, setting a hearing on October 2, 2007 at 9:00 a.m. The Registrar sent the Notice of Hearing to Respondent to the same addresses as the Citation and Complaint. 10. A hearing was held on October 2, 2007. Complainant appeared and testified on her own behalf and had admitted into evidence three exhibits. Inspector Gerold testified. 11. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it neither appeared through a duly authorized representative or an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence to defend its license. 12. Complainant testified that Respondent had not repaired the knocking in the master bath. Whenever water is turned on anywhere in the house, a loud knocking sound comes from the master bath. 13. Inspector Gerold testified that the sidewalk in front of Complainant’s house was excessively cracked. He would have required Respondent to repair the sidewalk, which it had constructed, except that at one time it appeared that the sidewalk was part of the common area owned by Complainant’s Homeowners’ Association, which would have been the proper party Complainant in another action. Inspector Gerold testified that, if Complainant established that she owned the sidewalk, Respondent should be required to repair it in this action. 14. Complainant had admitted into evidence plats of her subdivision and letters from the president of her homeowners’ association that established that the sidewalk was part of Complainant’s property, not part of the common area. CONCLUSIONS OF LAW 1. The notice of the hearing that the Registrar mailed to Respondent at the addresses it provided was reasonable and it is deemed to have received notice of the hearing.[1] 2. Complainant bears the burden of proof and must establish Respondent’s statutory violations 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 “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] 3. Complainant has established that Respondent violated A.R.S. § 32-1154(A)(7)[5] and (3)[6] in constructing the plumbing in the house such that turning on the water anywhere in the house causes a knocking sound and in installing the sidewalk that cracked excessively or in damaging the sidewalk. 4. Complainant also has established that Respondent violated A.R.S. § 32-1154(A)(23)[7] by failing to comply with the Corrective Work Order that it repair the knocking sound in the master bathroom. 5. The lapsed status of Respondent’s license is considered a factor in aggravation of the recommended penalty. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, forty days after mailing, the Registrar revoke Respondent Montessa Homes LLC’s License No. 184712, Class B-. It is further recommended that, if on or before the effective date of the Registrar’s final order, Respondent provides proof to the Registrar in writing that it has, in a professional and workmanlike manner, repaired the sidewalk and remedied the knocking sound in Complainant’s master bath, the Registrar should not revoke Respondent’s license but, instead, should close Case No. M06-0267. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, October 9, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

[2] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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

[4] Black’s Law Dictionary at page 1220 (8th ed. 1999).

[5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate 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 a written directive from the registrar.”

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