ALJDEC decisions subject to certification as final

07F-S0121-ROC · Registrar of Contractors · 2007-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6th, 2007; 1:30 p.m. APPEARANCES: Complainants, Mr. Richard and Ms. Virginia Mianecki, represented themselves. Respondent, Desert Springs Construction and Remodeling, LLC, was represented by Mr. Ed Eveningred. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam from the Registrar of Contractors’ Sierra Vista office. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent herein, Desert Springs Construction and Remodeling, LLC, is, and, with the exception of a period of suspension, during all time material hereto was, a contractor currently licensed by the State of Arizona, holding Class KB-02 License number 157751. 2. Complainants, Mr. Richard and Ms. Virginia Mianecki, are homeowners residing in Sierra Vista, Arizona. Respondent constructed their new home. Construction was substantially complete sometime in November, 2006, and Complainants took possession in early 2007. 3. Complainants were dissatisfied with several aspects of the construction and filed the instant Complaint with the Registrar of Contractors’ Sierra Vista office on or about January 11th, 2007. Complainants subsequently filed two separate addenda to the Complaint, adding more items. 4. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves, who conducted two separate job site inspections; the first for the original Complaint items, and the second for the first addendum filed. Inspector Nieves issued two written Corrective Work Orders based on his inspections. The first is dated January 17th, 2007, and the second is dated February 7th, 2007. Each allowed Respondent 15 calendar days to make the corrections, which is a reasonable amount of time. 5. The second addendum complained of alleged air conditioning problems. Complainants paid a licensed contractor to work on the air conditioner, and paid the contractor $1,039.53. Complainants seek restitution in this amount. Inspector Nieves did not have a chance to inspect the air conditioner before Complainants had the third-party contractor work on it. Respondent alleges that the item was under warranty, and if not working properly should have, and could have, been corrected at no cost. There is insufficient evidence to prove that the air conditioner was malfunctioning, or that it was necessary to hire a third-party contractor to correct any alleged malfunction, or that Respondent was given adequate notice and opportunity to remedy any alleged defect in the air conditioner. 6. Inspector Nieves conducted a pre-hearing inspection on November 1st, 2007. He credibly testified at the administrative hearing regarding all information he had in this case. 7. As to the first and second CWOs, there remain several items in need of correction. 8. As to the CWO dated January 17th, 2007, the following items still have not been corrected: (2) water leaks around sill; (3) well service entrance; (4a) dining room door; (4b) master bedroom door; (6a) tiles that are hollow; (6b) floor and countertop grout cracking, and (7) master bathroom floor. 9. As to the CWO dated February 7th, 2007, the following items still have not been corrected: (9) stained and cracked concrete that does not meet the standards; (10) cracking stucco on south windows; (13) fascia to be properly nailed; (14) phone and satellite outlets; (15) light in closet; (16) laundry room and family room windows, and (18) visible stains in tub. 10. The clear weight of evidence proved that the working relationship between these parties has disintegrated to the point of their being completely unable to work together toward a satisfactory conclusion to these problems. Complainants are unwilling to have Respondent return to their home based on their perception of Respondent’s incompetence, and Respondent is unwilling to go there based on Respondent's perception of Complainants’ belligerence and hostility. Other appropriately licensed contractor(s) ought to be retained to properly correct the remaining defects. 11. Notice is taken of the Respondent’s prior license record with the Arizona Registrar of Contractors. Respondent’s license was suspended by the Registrar from November 1st, 2006, to November 30th, 2006.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged ion the instant Citation and Complaint with possible violations of A.R.S 32-1154.A.2, 7, 18, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. The greater weight of evidence proved that Respondent had violated in this case A.R.S. 32-1154.A.2, departure from plans, specifications and codes for the construction of this home, and A.R.S. 32-1154.A.3, by violating the workmanship standards set forth at A.A.C. R4-9-108. Respondent also violated A.R.S. 32- 1154.A.23 by failing, without valid justification, to make the corrections listed in the Inspector’s two Corrective Work Orders, and violated A.R.S. 32-1154.A.18, by performing contracting work on this house in the month of November, 2006, while the license was suspended. 4. There is no evidence of any violation of A.R.S. 32-1154.A.7, wrongful or fraudulent conduct, independent of the violations already concluded.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class KB-02 License number 157751 be suspended until such time as the Registrar receives written proof that Respondent has caused other appropriately licensed contractors(s) to make the corrections listed in the Inspector’s two CWOs, as set forth hereinabove. It is further recommended that if the Respondent properly causes the accomplishment of the above-described corrective action, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and in lieu thereof the subject license shall be suspended for a period of three days for the violation of A.R.S. 32-1154.A.18. It is further recommended that in addition to the above-provided penalties Respondent pay the sum of $250.00 to the agency by way of civil penalty pursuant to A.R.S. 32-1154.D. Failure of Respondent to pay the entire amount of the aforesaid civil penalty on or before the effective date of this Order shall result in automatic revocation of Respondent’s contractor’s license, effective on such date. No future license shall be issued to any entity consisting of persons associated with Respondent as defined at A.R.S. 32-1101.A.5. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, November 13th, 2007.

______________________________________ Grant Winston Administrative Law Judge

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

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

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488