ALJDEC decisions subject to certification as final

08F-2271-ROC · Registrar of Contractors · 2009-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 16, 2009. APPEARANCES: Kevin and Tami Adams appeared personally. R A K Construction, L.L.C. was represented by its attorney, Charles W. Bassett, Esq. 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. R A K Construction, Inc. (“Respondent”) is the holder of License No. 208500, a Class KB-01 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 9, 2007, Respondent entered into a written contract with Kevin and Tami Adams (“Complainants”) for work to be performed at the Adams’ residence. 3. Complainants filed a written Complaint with the Registrar alleging 29 areas of deficient workmanship by Respondent on their project. The Registrar designated the Complaint as Case No. 08-2271. 4. In response to the Complaint in Case No. 08-2271, the Registrar’s assigned inspector, Geoff Galgan, performed a jobsite inspection on April 10, 2008, to view the alleged deficient workmanship listed in the Complaint. That inspection resulted in Inspector Galgan issuing a Corrective Work Order, the terms of which are incorporated herein by reference. The Corrective Work Order addressed each item from the Complaint, plus an addendum item. Respondent was required to timely comply with the remedial work required in the Corrective Work Order. 5. The Registrar issued a Citation and Complaint in Case No. 08-2271 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23), and (3), namely A.A.C. R4-9-108. 6. The Registrar forwarded Case No. 08-2271 to the Office of Administrative Hearings, an independent agency, for formal hearing. 7. At the commencement of the hearing, Complainants announced that three items from their Complaint remained at issue: No. 1 leaking window; No. 17 cracked travertine tile in their basement; and No. 18 repairs made to crack in basement and first floor drywall. Complainants stated that all other Complaint and Corrective Work Order items had been properly remediated. 8. Inspector Galgan performed a prehearing jobsite inspection on July 15, 2009. 9. At the prehearing jobsite inspection, Inspector Galgan performed a water test on Complainants’ windows. Although he was unable to replicate rain during the original jobsite inspection to determine whether the windows were leaking, Inspector Galgan’s water test at the prehearing jobsite inspection resulted in one window leaking water. 10. Also at the prehearing jobsite inspection, Inspector Galgan observed to 16 cracked travertine tiles in Complainants’ basement. 11. Inspector Galgan also opined that the finish of the basement and first floor walls have not been properly restored since repairs to cracks in the drywall have been made. 12. Respondent failed to comply with the Corrective Work Order as to item Nos. 17 and 18 of the Complaint. The Corrective Work Order did not require Respondent to perform any remedial repairs to windows at that time. 13. Respondent’s deficient workmanship as to Complaint items No. 1, 17, and 18 are wrongful acts that substantially injured Complainants. 14. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license and bond were cancelled on July 15, 2009.[1] CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the cancellation of Respondent’s contracting license does not deprive the Registrar of authority to impose discipline against the license for proven statutory and/or regulatory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The Administrative Law Judge concludes that the evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. Complainants did not address this allegation at the hearing. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Although Respondent addressed the majority of the items listed in the Corrective Work Order, item Nos. 17 and 18 required significant remedial work which Respondent failed to accomplish. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. The above-described Findings of Fact support this conclusion. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The above- described Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 208500 shall be revoked on the effective date of the Order entered in Case No. 08-2271. 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, August 3, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Respondent’s attorney stated during the hearing that his client is no longer in business and has no assets.

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