ALJDEC decisions subject to certification as final

08F-4273-ROC · Registrar of Contractors · 2009-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2009. APPEARANCES: R. A. Lyons, Inc., doing business as Select Builders, was represented by its president and qualifying party, Richard Lyons. Eurotech Decorative Concrete, L.L.C. was represented by its member and qualifying party, Ljeka Camaj. 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. Richard A. Lyons, Inc., doing business as Select Builders (“Complainant”), is the holder of License No. 163429 issued by the Registrar of Contractors (“Registrar”). 2. Eurotech Decorative Concrete, Inc. (“Respondent”) is the holder of License 230315, a Class C-09 contracting license issued by the Registrar. 3. Complainant and Respondent entered into a Contract, which provided for the latter to apply textured stamp to existing concrete at a residence located at 3122 North 78th Street, Mesa, Arizona. The subject property is owned by Complainant’s president and qualifying party, Richard Lyons, and his wife, Leslie Lyons. 4. On May 13, 2008, Complainant filed a written Complaint with the Registrar alleging deficient workmanship on the subject property by Respondent. The Complaint is incorporated herein by reference. The Registrar designated Complainant’s Complaint as Case No. 08-4273. 5. As a result of the filed Complaint, the Registrar’s assigned inspector, Beau Cruz, performed a jobsite inspection to view the alleged deficient workmanship. That inspection resulted in Inspector Cruz issuing a Corrective Work Order dated June 5, 2008 directing Respondent to timely perform remedial work to specified areas of its workmanship. The written directive also found Respondent not to be responsible for other specified allegations contained in the Complaint. The Registrar’s Corrective Work Order is incorporated herein by reference. 6. The Registrar issued a Citation and Complaint in Case No. 08-4273 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32- 1124(B). 7. The Registrar forwarded Case No. 08-4273 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. A clear distinction must be made between the Complainant, a separate legal entity, and the Lyons, as individuals, in this matter. Complainant cannot represent the interests of the Lyons, as individuals, in this matter. 9. The Lyons, as homeowners, are clearly frustrated with the numerous repair attempts performed by Respondent. 10. On May 18, 2009, Inspector Cruz performed a pre-hearing jobsite inspection at the Lyons’ residence. 11. At the hearing, Inspector Cruz testified that the following Corrective Work Order items[1] have been corrected by Respondent: Complaint 1, 2 and 6. 12. As to Complaint items 3 and 4, it is determined by credible evidence that additional repairs need to be performed in the areas of stair risings and bases. There are areas of spotting (leopards) that need work. The stripper needs to be done. 13. The Registrar’s written directive did not require Respondent to perform remedial work to Complaint item 5. 14. Complaint item 6 was corrected prior to Inspector Cruz’ pre-hearing jobsite inspection. 15. Corrective Work Order item number 7 was added at the original jobsite inspection, which Respondent did not attend. That items concerned “Concrete residue on thresholds and doors.” There is credible evidence that Ms. Lyons did those repairs. 16. Inspector Cruz testified that the issues of the delaminating surface finish in the vicinity of the Lyons’ outside patio table and chairs were not raised to him at the pre-hearing jobsite inspection. 17. Respondent is found to have substantially complied with the Registrar’s Corrective Work Order. There remains a small amount of work to be completed. Despite the testimony of Ms. Lyons, Respondent should be given one final opportunity to complete its scope of work in a workmanlike manner. 18. Complainant failed to establish that it has been substantially injured by Respondent’s acts or omissions.[2] 19. As the licensed contractor who hired Respondent to perform the subject scope of work, Complainant also bears responsibility for the work performed on the subject property. 20. Complainant did not present any evidence that Respondent failed to properly list its contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over the parties and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Pursuant to Rule 31 of the Rules of the Arizona Supreme Court, Complainant is not permitted to prosecute any individual claims for the Lyons. 4. The evidence of record supports the conclusion that Respondent substantially complied with the Registrar’s Corrective Work Order. Therefore, the Administrative Law Judge does not conclude that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint in Case No. 08-4273 issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint in Case No. 08-4273 issued by the Registrar. The above Findings of Fact support this conclusion. 6. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint in Case No. 08-4273 issued by the Registrar. While the Lyons, as homeowners, may have been injured by Respondent’s acts or omissions, Complainant failed to present credible evidence that it, as a licensed contractor, has been substantially injured by Respondent’s acts or omissions in this matter. 7. There is no credible evidence that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint in Case No. 08-4273 issued by the Registrar. The above Findings of Fact support this conclusion. 8. Any claim for restitution by the Lyons as homeowners must be raised in a separate action brought by them as individuals. RECOMMENDED ORDER Respondent’s License No. 230315 shall be suspended on the effective date of the Order entered in Case No. 08-4273 until the Registrar receives written proof, and it accept such proof, that either Respondent has fully complied with Corrective Work Order or that Respondent has been denied reasonable access to the subject property necessary to complete the required repairs. If Respondent submits written proof to the Registrar that it has complied fully with the Corrective Work Order, or has been denied reasonable access necessary to complete the outstanding repairs, and the Registrar accepts such proof, on or before the effective date of the Order in Case No. 08-4273, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 08-4273 shall be closed on the effective date of said Order. 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 8, 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] The Corrective Work Order items correspond numerically with the Complaint items. [2] The issue of whether or not the Lyons have been personally injured is outside the scope of this case, which is between Complainant and Respondent.

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