ALJDEC decisions subject to certification as final

07F-1808-ROC · Registrar of Contractors · 2007-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2007. APPEARANCES: Sherry F. Anderson appeared personally. Universal Cooling and Contracting, LLC was represented by its qualifying party, Jason Wallace. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Universal Cooling and Contracting, LLC (“Respondent”) is the holder of License No. 195552, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. In November 2006, Respondent was hired by Sherman H. Anderson and Sherry F. Anderson (“Complainants”) to perform remodeling work at their residence. 3. Complainants subsequently filed a written Complaint against Respondent with the Registrar alleging deficient workmanship. 4. In response to the written Complaint, the Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection at Complainants’ residence to view Respondent’s workmanship. As a result of that inspection, Inspector Cason issued a Corrective Work Order dated March 17, 2007, directing Respondent to timely perform specified remedial work, the terms of which are incorporated herein by reference. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. On November 13, 2007, Inspector Cason performed a pre-hearing jobsite inspection to determine Respondent’s compliance with the Corrective Work Order. 7. There is still overspray on Complainants’ gravel, which is below minimum workmanship standards. 8. One of Complainants’ plants still has overspray on it, which has not been corrected by Respondent as required by the written directive. 9. Respondent has appropriately removed paint on door jams. 10. The neighbor’s fence still has overspray and now white paint used by Respondent when it performed remedial repairs. 11. Respondent used masking tape instead of blue painter’s tape on the project. There is adhesive residue on window frames. 12. The three exterior doors at the back of the residence still have finishes that do not meet minimum workmanship standards. The surface paint is not uniform and there are two different finishes on the doors. 13. There is still paint on the northeast part of the driveway. 14. All other items set forth in the Corrective Work Order have been corrected to minimum workmanship standards by Respondent, corrected by Complainants and/or withdrawn by Complainants. 15. Respondent did not substantially comply with the terms of the Corrective Work Order. 16. Respondent’s deficient workmanship and failure to comply with the terms of the Corrective Work Order are wrongful acts that substantially injured Complainants. 17. Complainants submitted evidence of an advertisement used by Respondent that does not contain its contracting license number. 18. Complainants’ claim for compensatory damages should be resolved in a civil court of competent jurisdiction. 19. The Registrar’s records reflect that Complainants’ Complaint is the only one listed on Respondent’s Class B- license.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. There is no evidence in the record to support this alleged violation. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. As set forth in the above Findings, numerous areas of Respondent’s work do not meet minimum workmanship standards. 5. Respondent’s wrongful acts constitute a violation of A.R.S. § 32- 1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar. Respondent must list its contracting license with the acronym “ROC” preceding it on all forms of advertising as required by the statute. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (15), as cited in the Citation and Complaint issued by the Registrar. There is no evidence in the record to support this alleged violation. 8. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Respondent did not substantially comply with the Registrar’s written directive.

RECOMMENDED ORDER

Respondent’s Class B- contracting license shall be suspended on the effective date of the Order entered in Case No. 07-1808 until the Registrar receives written proof that Respondent has fully complied with the following terms and conditions, and the Registrar accepts such proof of compliance:

1. Respondent shall perform remedial repairs to the items described in the above described Findings No. 7, 8, 10, 11, 12 and 13. Such repairs shall be at Respondent’s sole cost and expense. 2. Respondent shall present the Registrar with proof that it has fully complied with the requirements of A.R.S. § 32-1124(B).

If Respondent has fully complied with the aforementioned conditions, and the Registrar approves Respondent’s compliance, on or before the effective date of the Order entered in Case No. 07-1808, then the above license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class B- contracting license shall be placed on probation for a period of days commencing on the effective date of the Order entered in Case No. 07-1808 or on the date the Registrar approves Respondent’s proper compliance with the terms of this Order, whichever is later. In addition to the above-provided penalties, if any, Respondent shall pay the sum of $250.00 to the Registrar 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 Case No. 07-1808 shall result in the automatic revocation of Respondent’s contracting 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 the 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, December 4, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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