ALJDEC decisions subject to certification as final

07F-M2256-ROC · Registrar of Contractors · 2008-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2008 APPEARANCES: Complainants Robert and Vicki Stearns appeared on their own behalf. Respondent Homes by Gene Wilson, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Homes by Gene Wilson, Inc. (“HGW”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Matter At the outset of the hearing, it was determined that the caption in this matter should be amended to include Vicki Stearns as a named Complainant. The caption now reflects such amendment. Procedural Background On March 11, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on April 15, 2008 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainants Robert and Vicki Stearns appeared on their own behalf. No one appeared on behalf of HGW. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of HGW, or the receipt of any information that would constitute good cause for HGW’s absence or delay. No such information was received. Therefore, the hearing proceeded in HGW’s absence.[1] FINDINGS OF FACT HGW is the holder of a Class B- license (No. 106570) issued by the Registrar of Contractors (“ROC”).[2] On or about December 1, 2004, Mr. and Mrs. Stearns contracted with HGW for HGW to construct their home located at 235 East 13th Avenue in Apache Junction, Arizona. The contract price was $140,585.00. The Stearns have paid HGW in full. The Stearns moved into the home on October 8, 2005. Thereafter, the Stearns contacted HGW on numerous occasions regarding various items of complaint, some of which were satisfactorily addressed by HGW and others that were not. 5. On May 23, 2007, the Stearns filed a lengthy complaint against HGW with the ROC. At the outset of the hearing, the Stearns indicated that all but two items of complaint have been resolved. The two items that remain at issue are as follows: a. the garage floor was epoxy coated without the consent of the Stearns, and the application of the coating was poorly done; and b. the concrete on the east side of the house by the foundation and under the air conditioning unit, retains water when it rains.

6. ROC Inspector Beau Cruz investigated the Stearns’ complaint. 7. On June 18, 2007, Inspector Cruz conducted a jobsite inspection. 8. On June 19, 2007, following the jobsite inspection, Inspector Cruz issued a Corrective Work Order (“CWO”) under which the ROC gave HGW 15 days to take corrective action with respect to the remaining items of complaint as follows:

Complaint 3) Garage slab was improperly finished and epoxy coating on garage the (sic) slab was installed to hide finish contaminated by dirt and homeowner did not request coating: Several area of chipping and peeling are present along with rough texture. The contractor is to correct by the appropriate means.

Complaint 4) Water ponds on area of poured concrete on the east side of structure next to the foundation: Flooded area with water and water ponds to a depth of ¾ of an inch in depth. Left area for ½ of an hour and had reseeded (sic) minimally. The contractor is to correct by the appropriate means.

Complaint 5) Water ponds below A/C unit: See complaint 4 for findings.

9. Inspector Cruz testified that he conducted a pre-hearing inspection on April 14, 2008. Inspector Cruz testified that with regard to the ponding, the control joints have been saw cut, but due to a conflict over who was to be responsible for the moving of the air conditioning unit, this issue has not been corrected. Regarding the garage floor, Inspector Cruz testified that there are abrasive marks below the clear finish and that there are minor areas where the finish/color is not consistent with the rest of the floor. 10. The Stearns testified that HGW via a subcontractor, attempted correcting the garage floor, however, the corrective work was improperly performed in that only one coat of finish was applied. As such, the finish can be seen through and “flecks continue to stick out”, as well as cement chips. The Stearns submitted into evidence several photographs depicting the condition of the garage floor. See Exhibits 1 through 3. 11. Regarding the concrete slab, the Stearns testified that while HGW began corrective work saw cutting the slab, HGW refused to move the air conditioning unit because it did not want to assume that liability. HGW refused to perform any further corrective work and the concrete slab continues to puddle. The Stearns submitted into evidence several photographs depicting the ponding of water on the concrete slab. See Exhibits 4 through 6. CONCLUSIONS OF LAW In this proceeding, the Stearns bear the burden to prove, by a preponderance of the evidence, that HGW is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its October 31, 2007 Citation and Complaint. See Arizona Administrative Code (“A.A.C”) R2-19-119. 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). The Administrative Law Judge concludes that the Stearns met their burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged HGW with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that HGW failed to perform portions of its work at the Stearns’ home in a professional and workmanlike manner as evidenced by the poor condition of the garage floor and the continued ponding on the concrete slab. Therefore, the Administrative Law Judge concludes that HGW violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued HGW a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that HGW failed to perform the required corrective work without valid justification. Therefore, the Administrative Law Judge concludes that HGW violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that HGW committed wrongful acts that substantially injured the Stearns by failing to perform portions of its work at their home in a professional and workmanlike manner and by failing to correct those deficiencies. Therefore, the Administrative Law Judge concludes that HGW violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against HGW’s Class B- license. Upon consideration of all of the facts and circumstances presented by this case, including HGW’s failure to appear for hearing and its canceled license status, the Administrative Law Judge concludes that the ROC should revoke HGW’s Class B- license. RECOMMENDED ORDER In view of the foregoing, it is recommended that HGW’s Class B- license shall be revoked on the effective date of the Order entered in this matter. 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, April 30, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] On April 11, 2008, Lynda Montgomery, HGW’s former administrative assistant, submitted correspondence with the Office of Administrative Hearings indicating in pertinent part that HGW’s license has been canceled, the company is no longer in business, and that HGW will not be attending the scheduled hearing. [2] A review of the ROC’s official records revealed that HGW’s contracting license was canceled on July 24, 2006. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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