ALJDEC decisions subject to certification as final

07F-2752-ROC · Registrar of Contractors · 2008-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2008 APPEARANCES: The Complainant appeared in his own behalf. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Preliminary Matters This matter came on for hearing as scheduled. The Complainant was present and prepared to proceed. The Respondent failed to appear with no good cause known for the non appearance. Inspector Warren Duncan (Duncan) from the Registrar of Contractors (ROC), was ill and unable to testify at the hearing. The hearing proceeded as scheduled. Based on the competent uncontested evidence including certain documents in the hearing file[1], the following findings are submitted. Findings of Fact 1. In September 2005, the parties entered a contract whereby the Respondent would add a 1500 square foot three room addition and patio area to the Complainant’s home in Moon Valley, Phoenix, Arizona. According to the Complainant, the contract included new roofing (mastic) on the flat roof of the original portion of the home as well as the addition. The price term for the project was $97,900.00. 2. The initial work was completed in March, 2006, but certain “punch list” items were not completed until October, 2006. Over the next seven months the Complainant identified a number of problem areas which were not corrected by the Respondent. 3. The Complainant filed the Complaint with the Registrar of Contractors (ROC) on May 23, 2007. 4. On July 9, 2007, ROC Inspector Warren Duncan (Duncan) performed a jobsite inspection. 5. On July 11, 2007 Duncan issued a Corrective Work Order (CWO) which required the Respondent to correct a number of items identified by the Complainant. The most significant items included cracks and other stucco problems at various locations, and the roof (wavy, improper slope, and ponding problems). 6. Based on the ROC Inspector’s notes, there were certain items which remained to be corrected by the Respondent and Duncan conducted a second jobsite inspection on November 29, 2007. 7. On December 11, 2007, Duncan issued a second CWO which required corrective work on parapet walls, the cracks on exterior stucco, cracks on fence walls, matching paint, excessive ponding at the rooftop air conditioner and on the garage roof. 8. On December 15, 2008, Duncan performed prehearing jobsite inspection. According to the Complainant, all corrective work is completed except for the remaining roof problems (the ponding by the air conditioner is no longer a problem), and a slight separation (1/2”) of a piece of fascia at the southeast side of the home. 9. Photographic evidence (taken December 15, 2008) submitted during the hearing, shows water ponding/pooling on the garage roof as a consequence of a moderate rain, a rip (1”X2”) in the mastic on the garage roof, extensive ripples and depressions on the garage roof, extensive cracking of the mastic on the roof over the addition. 10. ROC records indicate the Respondent’s license is current to the December 31, 2008 renewal date. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154 (A)(3)/A.A.C. R4-9-108, workmanship standards; (A)(7), a wrongful act with substantial injury; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The evidence presented by the Complainant is not contested or otherwise disputed. The evidence is considered credible and reliable and establishes the violations of the cited statutes. The inadequate workmanship (A)(3)/A.A.C R4-9-108 violation is established by the two CWO’s issued by Duncan. Although the Respondent performed corrective work, the unrepaired roof remains a major issue. This is a violation of (A)(23). The Respondent’s failure to repair the roof resulting in the necessity of the Complainant having to look to other resources for the repair of the roof, with the attendant cost in time, potentially money, potential water damage to the home, as a consequence of the Respondent’s failure to correct the roof for over a year and a half, is a violation of (A)(7). 5. The recommendation in this case is based on the established violations and the failure of the Respondent to appear at the hearing and present any evidence in mitigation or any evidence that the problems with the roof would be corrected. Such an unexplained failure to appear indicates a lack of serious concern regarding the status of the license. Recommended Decision It is recommended commencing the effective date of the Order issued in this matter[2] that the Class B License, No. ROC 180784 of the Respondent shall be revoked.

Done this day, December 16, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Armando Contreras , Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Documents include the initial Complaint, date of the contract, Corrective Work Orders, Citation and Complaint, and certain of the ROC inspector’s jobsite notes. [2] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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