ALJDEC decisions subject to certification as final

07F-G1861-ROC · Registrar of Contractors · 2008-08-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2008 APPEARANCES: Complainant: Michele Breslin appeared, pro per. Respondent: Respondent failed to appear either through authorized representative or counsel. Registrar of Contractors: Inspector Craig Williams appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated June 25, 2008. 2. Complainants Charles Breslin and Michele Breslin (“Complainants”) are the owners of a residence located at 8729 North 193rd Dr., Waddell, Arizona (“premises/project”). 3. Respondent Tri Dun Construction, LLC, (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 200125, Class KB-02 (Dual Residence and Small Commercial) issued by the Registrar of Contractors (“ROC”) on September 28, 2004. Daniel Gregg Dunn (“Dunn”) is a member and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended April 3, 2008 until compliance with a corrective work order (G07- 1176) and was revoked August 8, 2008 (G08-0038). 4. Complainants filed a complaint with the ROC on May 31, 2007 to which was annexed, inter alia, a list of nine items of complaint with the work performed by Respondent on the premises. 5. On June 22, 2007, Complainants filed a correspondence (“addendum”) with the ROC wherein were set forth three additional items which they alleged required corrective work. 6. Registrar of Contractors Inspector Craig Williams (“Williams”) conducted a jobsite inspection on August 6, 2007 and issued a Corrective Work Order on August 13, 2007 which required Respondent to perform corrective work on eight items, i.e., 2, 3, 4, 7A, 10, 11, 12 and 13. No remedial work was required on items 1, 5, 6, 7B, 8 and 9. 7. On October 2, 2007, Complainants filed a request for hearing wherein they advised the ROC that items 2, 3, 7A and 11 remained incomplete. 8. On March 19, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. G07-1861 charging Respondent with possible violations of A.R.S. §32-1154A 2, 7, 9, 23, 13 (namely, A.R.S. §32-1124(B) and 3 (namely, R4-9- 108, the workmanship rule). 9. Respondent filed an answer on March 24, 2008 wherein it asserted a general denial of all allegations. Respondent further asserted that complaint items 4, 7A, 10, 12 and 13 had been completed and that Complainants “refused to come to agreement on all offers on numbers 2, 3 and 11.” 10. Prior to the presentation of any testimony or other evidence at the hearing, Complainant advised this tribunal that only Corrective Work Order items 2 (contractor to correct per plans and specs or per signed agreement regarding installation of a tankless water heater), 3 (“due to oversized water heater, putting the water softener in will cost extra because it no has to be installed outside the intended space”) and 11 (two different colors of tile were installed in the master shower). 11. At the hearing, Complainant Michele Breslin (“Breslin”) credibly testified and submitted Exhibits 1A, 1B, 2, 3, 4, 5 and 6 which were marked, admitted and considered. 12. Respondent failed to appear either through any authorized representative or counsel. 13. Inspector Williams testified on behalf of the Registrar of Contractors and described his observations and conclusions on his initial jobsite inspection and pre-hearing jobsite inspection on August 4, 2008. 14. Respondent served as the general contractor on the project. 15. Complainants moved into the premises on or about December 16, 2006. 16. Respondent installed and/or caused to be installed two different colors of tile in the master bathroom shower (Corrective Work Order issue 11). (Exhibits 1A, 1B and 3) 17. Breslin testified that just prior to move-in Dunn advised Complainants that the two utility areas of the premises had not been built appropriately to accommodate the two fifty (50) gallon water heaters required by the plans. At that time, Dunn agreed to research tankless hot water heaters for both sections of the project which could possibly be installed in lieu of the above-referenced 50 gallon units. Subsequently, Complainants returned to the project and learned that Respondent had installed a one-hundred twenty (120) gallon water heater on the north side of the premises which Dunn represented would be the “fix” for the two 50 gallon heaters. Dunn further represented that since the project was on a “continual loop,” the larger water heater would service the entire project. 18. Breslin testified that Complainants were not notified of nor had they agreed to the change of water heaters for the project. 19. Breslin further testified that, upon move-in, Complainants determined that no hot water was available for the south side of the premises, i.e., the section of the project without a hot water heater. 20. Dunn subsequently had a plumber install a hose from the north side of the premises to provide hot water to the south side. Though Complainants now have hot water on the south side of the premises, only luke warm water is available on the north side. 21. Breslin further testified that, due to the installation of the unapproved 120 gallon hot water heater, the project is unable to accommodate the water softening system Complainants intended to install after move-in. 22. Respondent failed to rectify Corrective Work Order issues 2 and and 11.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. G07-1861 charged Respondent with possible violations of A.R.S. §32- 1154A 2, 7, 9, 13 (specifically A.R.S. §32-1124(B)), 23 and 3 (namely R4-9- 108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications code.

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7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

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9. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract. … 13. Failure in any material respect to comply with the provisions of this chapter.

23. Failure 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 written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business. A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (2), (3) (namely, A.A.C. Rule 4-9-108, the workmanship rule) and (23) as they pertain to Corrective Work Order items 2, 3 and 11 as set forth in Findings of Fact 16, 17, 18 and 22. 5. It is further determined and concluded that based on the violations set forth in Conclusion of Law 4 above, Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7) as charged in the issued Citation. 6. This tribunal further determines and concludes that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (9) and (13, namely, A.R.S. §32-1124(B)). 7. It is also determined and concluded that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith subsequent to the construction of the project as its efforts pertain to the subject master bathroom tile and hot water heater/water softener issues. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing without legal or reasonable excuse. 8. It is further determined and concluded that Respondent’s prior suspension and revocation in Case Nos. G07-1176 and G08-0038, respectively, shall serve as factors in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class KB-02 license of Respondent be revoked.[1] Done this day, August 18, 2008.

________________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ______________________ ----------------------- [1] 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 in this matter will be forty (40) days from the date of that certification.

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