ALJDEC decisions subject to certification as final

08F-L0272-ROC · Registrar of Contractors · 2009-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2009. APPEARANCES: Wendi Hubbard appeared personally. Scholer Homes, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ At the commencement of the scheduled hearing, the Citation and Complaint in Case No. L08-0272 was amended to add Wendi Hubbard as a Co- Complainant. 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. Scholer Homes, L.L.C. (“Respondent”) is the holder of License No. 191366, a Class KB-02 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Brian and Wendi Hubbard (“Complainants”) hired Respondent to construct their residence located at 1773 Calle Agrada, Fort Mohave, Arizona. 3. Complainants moved into their residence on or about April 10, 2006. 4. Respondent last performed work at the residence on May 20, 2006. 5. On or about February 4, 2008, Complainants filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. 6. The Registrar designated Complainants’ Complaint as Case No. L08-0272. 7. On or about March 4, 2008, the Registrar’s assigned inspector, Cliff Corlett, performed a jobsite inspection to view the alleged deficiencies in Respondent’s workmanship. 8. As a result of his jobsite inspection, Inspector Corlett issued a Corrective Work Order dated March 5, 2008, which directed Respondent to timely remediate specified deficiencies in its workmanship. 9. The Registrar issued a Citation and Complaint in Case No. L08-0272 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (18), (23), and (3), namely A.A.C. R4-9-108. 10. The Registrar forwarded Case No. L08-0272 to the Office of Administrative Hearings, an independent agency, for formal hearing. 11. The Registrar issued a Notice of Hearing in Case No. L08-0272, which advised the parties of the time, date, and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 12. Representation of parties before the Office of Administrative Hearings is subject to Rule 31 of the Rules of the Arizona Supreme Court. 13. At the hearing, Candace Lamb attempted to represent Respondent. After being questioned, the Administrative Law Judge determined that Ms. Lamb did not meet the representation requirements of Rule 31. She is not a named member of Respondent’s limited liability company, she is not an attorney licensed to practice law in the State of Arizona, and she is not a full time employee of Respondent. Therefore, no proper appearance was made on behalf of Respondent. The Administrative Law Judge conducted the hearing in Respondent’s absence. 14. Ms. Hubbard testified that the stucco repairs had been addressed and completed. 15. The repairs to the master bathroom shower have been completed. However, the leak in the shower damaged her son’s adjoining bedroom. There is mold damage in the carpet and carpet pads. There was also mold damage to the wooden bed frame in the son’s bedroom, which has been removed by Complainants. 16. Originally, Respondent sent a mold remediation company, Mohave Clean and Restoration, to perform restoration work in the bedroom. However, Respondent did not pay that company. 17. Ms. Hubbard testified that more mold spores were exposed during the removal of the damaged shower area. The shower was removed without sealing the debris to contain mold spores. 18. Respondent failed to properly remediate the mold damage in the son’s bedroom. 19. Respondent failed to comply with the Registrar’s written directive to properly seal Complainants’ garage floor. Ms. Hubbard testified that she stopped Respondent’s worker because he was painting the garage floor instead of sealing it. 20. Respondent completed the remaining items contained in the Registrar’s written directive. 21. Respondent did not substantially comply with the Corrective Work Order. Respondent failed to remediate the extensive mold damage in the bedroom and failed to properly seal the garage floor. 22. Respondent’s failure to fully comply with the Corrective Work Order is a wrongful act that substantially injured Complainants. 23. A review of the Registrar’s official records reveals that Respondent’s License No. 191366 was revoked on April 15, 2008 in Case No. H07-0103. As a result of the revocation of its contracting license, Respondent was not permitted to legally perform any contracting commencing on April 15, 2008. 24. The Registrar’s records list Charles Thomas Scholer as Respondent’s member and qualifying party, and Caroline Elizabeth Scholer as its other member. Candace Lamb does not appear named on the license.

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 revocation of Respondent’s contracting license does not deprive the Registrar of jurisdiction to impose discipline on that license for proven statutory and/or regulatory violations in this matter. 2. Pursuant to A.A.C. R2-29-119(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. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Respondent failed to properly seal Complainants’ garage floor and to remediate the mold and damage caused by the leak from the master bathroom shower into the adjoining bedroom, as required by the Corrective Work Order. Respondent had adequate time to perform such repairs from the date the written directive was issued on March 5, 2008, until its license was revoked on April 15, 2008. 4. 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 issued by the Registrar. Respondent failed to remediate the damage caused by the leaking shower and the sealing of the garage floor in a workmanlike manner. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s failure to remediate the mold damage and to seal the garage floor substantially injured Complainants. 6. There is insufficient evidence of record to support the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (18), as cited in the Citation and Complaint issued by the Registrar. Complainants did not address this issue at the hearing.

RECOMMENDED ORDER Respondent’s License No. 191366 shall be revoked in Case No. L08-0272 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, March 24, 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 ___________________________ -----------------------

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