ALJDEC decisions subject to certification as final

08F-2482-ROC · Registrar of Contractors · 2009-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2009 APPEARANCES: Larry Berke, Complainant; Richard Alcorn, Respondent’s Attorney; Gary Jonas and Jim Carlson, Respondent’s witnesses; Jim Dimond, Registrar of Contractors Inspector; and Helen Young, Interpreter ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. The Complainants contracted for the Respondent to build their home using plans provided by the Respondent. After the home was built and the Complainants had moved in, they found that the walls around their backyard were low enough to allow hikers to look into their property. They also experienced flooding in the home when a gable vent admitted blowing rain to such an extent that water soaked through the attic floor to the kitchen ceiling below. 2. On February 15, 2008, the Complainants filed a complaint with the Registrar of Contractors. On April 9, 2008, Registrar of Contractors Inspector Jim Dimond conducted a job site inspection. He found that the wall was built by the developer, not the Respondent, and it was, therefore, not the Respondent's responsibility. He also found water damage in the kitchen ceiling. Knowing that other homes had the same problem with the type of gable vent installed in the Complainants' home, he found that the cause of the flooding was the gable vent. However, he found that the cause of the flooding was a design defect in the vent and, for that reason, it was not the responsibility of the Respondent. On April 30, 2008, he issued a letter to the parties requiring no action on the part of the Respondent.

3. The Complainants requested a hearing in the matter, and the Registrar of Contractors issued a Citation and Complaint alleging potential violations of A.R.S. § 32-1154(A)(7) and (3)(namely Rule 4-9-108) and (13)(namely § 32-1124(B)). 4. At the hearing in the matter, Inspector Dimond and the parties' witnesses testified as to the above facts. The Complainants offered no evidence that the Respondent has ever done any work on the perimeter walls. However, Inspector Dimond testified that the gable vents would likely admit water whenever monsoon rains occurred because of the location of the home, the direction the vents are facing and the type of vents installed. 5. According to the records of the Registrar of Contractors, the license in this matter has 7 open complaints and 4 complaints that were resolved, settled or withdrawn. Currently, there is no record of disciplinary action having been imposed by the Registrar of Contractors. 6. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7), (13)(specifically A.R.S. § 32-1124(B)), and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at § 32-1154(A)(13) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. A.R.S. § 32-1124(B) requires contractors to display their license number and the acronym “ROC” on the premises of their projects and on all documents they employ. 6. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 7. In this case, the Complainants have not established that the Respondent has done any work on the perimeter walls of the home or that it should be held responsible for their construction under any other legal theory. However, the Complainants have established that the Respondent violated A.R.S. § 32-1154(A)(3) and (7). It was a wrongful act to install a vent of the type that will allow the home to flood every year thereby causing substantial damage to the Complainants. The determination to install such a vent does not meet minimum workmanship standards. No other potential violations were discussed at hearing. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Order in this matter, Respondent’s Class B- license shall be actively suspended until the Registrar receives and accepts sufficient proof that Respondent has replaced or altered the Complainants’ gable vent so that blowing rain does not enter the attic to the extent that water damage can take place in the Complainants’ home. It is further recommended in addition to the foregoing license suspension, if any, that Respondent’s Class B- license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, April 29, 2009 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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 ___________________________ -----------------------

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