ALJDEC decisions subject to certification as final

08F-2786-ROC · Registrar of Contractors · 2009-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2009 APPEARANCES: Complainants Myoshi Woods and Doris Woods appeared on their own behalf. Respondent Alexander Stewart, doing business as Higher Heights Home Improvement, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Alexander Stewart, doing business as Higher Heights Home Improvement (“Higher Heights”), 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 Doris Woods should be properly named as a Complainant in this matter. As such, the caption in this matter is amended to reflect Doris Woods as a co- Complainant. Procedural Background On March 16, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on May 20, 2009 at 1:30 p.m. On May 18, 2009, Higher Heights filed a Motion to Continue the hearing for the reason that its principal currently resides in Utah “and for financial reasons needs additional time to raise the necessary funds to travel back to Arizona.” On May 18, 2009, an Order Denying Continuance was issued to the parties, advising that the hearing would proceed as previously noticed to the parties. On the date and at the time scheduled for the continued hearing, Myoshi Woods and Doris Woods appeared on their own behalf. No one appeared on behalf of Higher Heights. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Higher Heights, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Higher Heights’ absence. FINDINGS OF FACT 1. Higher Heights is the holder of a Class C-62 license (No. 201555) issued by the Registrar of Contractors (“ROC”).[1] 2. On February 10, 2008, Doris Woods (“Ms. Woods”) contracted with Higher Heights for Higher Heights to perform the painting of the exterior of the home in which her mother, Myoshi Woods, resides. 3. Higher Heights performed its work at the home. Ms. Woods was dissatisfied with portions of Higher Heights’ work. 4. On February 29, 2008, Ms. Woods filed a complaint against Higher Heights with the ROC. In the complaint, Ms. Woods alleged the following: 1. All windows have tape adhesive & paint. 2. Some parts of different windows not paint (sic). 3. Some old paint on the concrete & wooden areas not scrape (sic), but painted. 4. Parts of roof front, sides of roof, esp. front has white paint that was spray painted & not protected. 5. Did not paint all trimmings on the porch. 6. Left drinks, some paper & tape not removed when work they thought was completed (sic). 7. Tried to receive money (partial) even though contract clearly states no pay on till (sic) work is satisfied with home owner. 8. Told me they were unable to do the work on the day agreed since they needed money to finish another project.

5. ROC Inspector Jeff Wills investigated Ms. Woods’ complaint. 6. On March 26, 2008, Inspector Wills conducted a jobsite inspection. Only Ms. Woods was present for the inspection. A representative for Higher Heights did not attend. 7. On April 2, 2008, following the jobsite inspection, Inspector Wills issued a Corrective Work Order (“CWO”) under which the ROC gave Higher Heights 15 days to take corrective action as follows: Contractor to correct by appropriate means the following: 1. White paint overspray and white paint drips on roof shingles at the front of the home at the gable area. 2. Per the contract/proposal the home was to be scraped, primed and then painted. It is the opinion of this inspector that several locations on the exterior of the home including the trim (wood and stucco) was (sic) not scraped prior to the prime and paint. This also includes all exterior window ledges. 3. White trim (wood and stucco) not fully painted in numerous locations around the home including the porch. It appears and is the opinion of this inspector that most of these areas were not masked off properly. 4. Unfinished stucco repair at the rear of the home. 5. Paint overspray and tape adhesive on windows. 6. Exterior window ledges not fully painted. Old paint located under the new paint is causing the new paint to flake off. 7. The contractor is to clean up any debris, garbage, etc. resulting from their (sic) work each day. 8. Per the contract/proposal: Full payment to be rendered at the time of completion.

The following item was added at the time of the jobsite inspection and is to be corrected by the contractor by appropriate means. 1. Two single hung windows, one at the north end of the front porch and the other at the north side of the home no longer open per the homeowner due to trim paint.

No action required by the contractor on the following items (sic): 1. Paint overspray on the concrete (driveway and walkway areas). Per the homeowner, this is no longer an issue.

8. On May 13, 2008, Ms. Woods filed an amendment to the complaint as follows: Sunscreen - 1 has paint Most sunscreens put back incorrectly Screws are different colors (some) Some clips missing Some of the edge (sic) on the screens are dented

9. On May 30, 2008, Inspector Wills conducted a second jobsite inspection. Only Ms. Woods was present for the inspection. A representative for Higher Heights did not attend. 10. On June 16, 2008, Inspector Wills issued an Amended CWO under which the ROC gave Higher Heights 15 days to take corrective action as follows: Contractor to correct by appropriate means the following: 1. The sunscreen on the north side of the home is covered in white paint overspray. 2. Most sunscreens installed incorrectly: The homeowner pointed out numerous screens that had mismatched clip screws re-installed after painting was done. Two screens were missing clips, some clips re- installed too deep causing clips not being able to be secured or clipped to the frame of the screen and some clip screws were not installed deep enough causing the clips to move freely in such a way that the clip cannot be securely clipped to the frame.

No action required by the contractor on the following items: 1. Edges of sunscreens dented.

11. Inspector Wills testified that he conducted a pre-hearing inspection on May 19, 2009, at which Ms. Woods’ daughter, Angelica, was present. Inspector Wills testified that it appears that attempts have been made to correct certain items. However, there are still several areas where workmanship is poor, and other areas where no attempts at corrective work have been made. 12. Ms. Woods testified that overall, Higher Heights performed its work unprofessionally and not in a workmanlike manner. Higher Heights performed some corrective work after the issuance of the CWOs. However, even the corrective work was poorly done. CONCLUSIONS OF LAW In this proceeding, Myoshi Woods and Doris Woods bear the burden to prove, by a preponderance of the evidence, that Higher Heights is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(3), (A)(7), (A)(15), and/or (A)(23) as charged by the ROC in its January 9, 2009 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 Myoshi Woods and Doris Woods met their burden of proof as to four of the ROC’s five charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based upon the credible evidence of record, that although Higher Heights’ work was substantially complete, Higher Heights abandoned its contract with Ms. Woods in that Higher Heights failed to correct the deficiencies in its work despite the issuance of a CWO and an Amended CWO. Therefore, the Administrative Law Judge concludes that Higher Heights violated A.R.S. § 32-1154(A)(1). 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 Higher Heights 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 Higher Heights failed to perform its work at Ms. Woods’ mother’s home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Higher Heights violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(15), a contractor is subject to discipline for “acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” Ms. Woods did not address this alleged violation and there is insufficient evidence in the record to determine whether Higher Heights acted in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon its license. Therefore, the Administrative Law Judge does not conclude that Higher Heights violated A.R.S. § 32-1154(A)(15). 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 jobsite inspections by the appointed inspector for the ROC were held, pursuant to which the ROC issued Higher Heights a CWO and an Amended CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that while Higher Heights attempted to comply with the CWOs, substantial compliance was not achieved. Therefore, the Administrative Law Judge concludes that Higher Heights 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 Higher Heights committed wrongful acts that substantially injured Ms. Woods by failing to perform its work at Ms. Woods’ mother’s home in a professional and workmanlike manner, and by failing to comply with the CWOs. Therefore, the Administrative Law Judge concludes that Higher Heights violated A.R.S. § 32-1154(A)(7). 9. Based on the foregoing, it is appropriate for the ROC to impose discipline against Higher Heights’ Class C-62 license. 10. Upon consideration of all of the facts and circumstances presented by this case, including Higher Heights’ failure to appear for hearing and its suspended license status, the Administrative Law Judge concludes that the ROC should revoke Higher Heights’ Class C-62 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Higher Heights’ Class C-62 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, June 3, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Higher Heights’ Class C-62 license (no. 201555) was suspended on December 1, 2008, for nonrenewal and lack of bond. Such suspended 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