ALJDEC decisions subject to certification as final

07F-G1209-ROC · Registrar of Contractors · 2007-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2007. APPEARANCES: Michael Krout appeared personally. Marlor Land Company, Inc., doing business as Marlor Homes, was represented by its authorized representative, Richard Knights. 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. Marlor Land Company, Inc., doing business as Marlor Homes (“Respondent”), is the holder of License No. 075902, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Respondent was the builder of a residence purchased by Michael Krout (“Complainant”). 3. After the completion of his home, Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. Complainant later added an addendum to his original Complaint. There were a total of 23 complaint items. 4. The Registrar’s assigned inspector, Eric Ulinger, performed a jobsite inspection to view the alleged deficiencies in Respondent’s workmanship. As a result of that inspection, Inspector Ulinger issued a Corrective Work Order which required Respondent to timely perform remedial repairs to specific items. The Corrective Work Order also specified work that met minimum workmanship standards. 5. The Registrar issued a Citation and Complaint in Case No. G07-1209 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23) and (3), namely A.A.C. R4-9-108. The Registrar then forwarded the case to the Office of Administrative Hearing, an independent agency, for formal hearing. 6. On December 12, 2007, Inspector Ulinger performed a pre-hearing jobsite inspection at Complainant’s residence. Inspector Ulinger opined that repairs had been made to Complainant’s bathtub, but he noted that a crack in the tub’s surface needs to be polished. He also concluded that the paint in Complainant’s shower needs to be touched up. Respondent is found to be responsible for performing those remedial repairs. 7. Respondent is found to have substantially complied with the Registrar’s Corrective Work Order. 8. At the hearing Respondent’s authorized employee stipulated to matching the paint on the pilaster next to Complainant’s RV gate. 9. Although he has been inconvenienced by Respondent, Complainant has not been substantially injured by Respondent. 10. Any other issues raised by Complainant that are not specifically addressed in the above Findings are found to have been repaired to minimum workmanship standards by Respondent or are outside the scope of Complainant’s Complaint. 11. The Registrar’s official records reflect that Respondent’s Class B- license has one open complaint and three resolved/settled/withdrawn complaints.

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), Complainant has 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)(7), as cited in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proving substantial injury by Respondent’s acts or omissions. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar. Respondent substantially complied with the Registrar’s written directive to perform specified remedial repairs to its deficient workmanship. 5. Respondent did violate the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. Respondent is responsible for performing the minor remedial repairs described in the above Findings No. 6 and 8.

RECOMMENDED ORDER

Respondent’s Class B- contracting license shall be suspended on the effective date of the Order entered in Case No. G07-1209 until the Registrar approves Respondent’s written proof that it has performed the repairs described in Findings No. 6 and 8 to minimum workmanship standards. If the Registrar approves Respondent’s written proof that it has performed the above-described remedial work to minimum workmanship standard on or before the effective date of the Order entered in Case No. G07-1209, then the above-provided license suspension shall not take place. In addition to the above-described penalty, if any, Respondent’s Class B- license shall be placed on probation for a period of 90 days, commencing on the effective date of the Order entered in Case No. G07-1209 or the date the Registrar approves Respondent’s written proof that it has performed the repairs described in Findings No. 6 and 8 to minimum workmanship standards, which ever is the later date. 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, January 2, 2008.

______________________________________ 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 ___________________________ -----------------------

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