ALJDEC decisions subject to certification as final

08F-S0209-ROC · Registrar of Contractors · 2009-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 2009; 1:30 p.m. APPEARANCES: Complainants Mr. Jeffrey D. and Ms. Charlene Manning represented themselves. Respondent Roark Construction, Inc. was represented by Mr. Rick Roark, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Roark Construction, Inc. is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B- License number 125438. 2. Complainants Mr. Jeffrey D. and Ms. Charlene Manning contracted in writing with Respondent to construct their new home in Elgin, Arizona, in the summer of 2005. The written contract created by Respondent nowhere includes the jobsite address or a legal description of it, nor an estimated date of completion of the work. Construction was completed and Complainants moved into the new home in May, 2007. 3. There were several defects in the construction of the new home. Most significantly, the home had several leaks and Respondent never provided Complainants with a certificate of pre-treatment against termites. 4. Complainants filed the instant Complaint with the Registrar of Contractors on May 12, 2007, alleging approximately four dozen items of defective construction and otherwise unprofessional contracting on the part of Respondent. 5. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves, who scheduled a job site inspection with notice to the parties. Prior to the scheduled inspection the Registrar of Contractors closed the Complaint at the request of Complainants. Evidently the Complainants had become willing to allow the Respondent some more time to correct the defects. 6. The defects were not corrected. Complainants asked for their Complaint to be reopened and they filed addendum items. Inspector Nieves scheduled and noticed another job-site inspection which was held on September 9, 2008. As a result of his inspection, Inspector Nieves issue a written Corrective Work Order (CWO) to Respondent dated September 10, 2008. The Inspector found that more than three dozen items were in need of correction by the Respondent, and ordered those items to be corrected by appropriate means using properly licensed contractors. The Inspector allowed the Respondent 15 calendar days to make the corrections, which was a reasonable amount of time. 7. Respondent failed to make the corrections within the time allowed, and Complainants requested an administrative hearing. The hearing was duly scheduled, noticed and held. 8. Complainants testified at the hearing as did the Inspector and the Respondent’s Qualifying Party, Mr. Rick Roark. A number of Complainants’ exhibits were admitted, including photographs showing the defects in Respondent’s work. 9. The greater weight of evidence, including the Inspector’s credible testimony of his findings at his pre-hearing inspection the day before the hearing, proved that Respondent has failed to properly correct almost all of the items in the CWO. 10. Respondent did make some effort to correct the items, but the effort was lacking and in many respects half-hearted attempts to cover up problems rather than correct them. However, it is also found that in at least one instance Complainants were unwilling to allow Respondent’s agents retained to perform corrective work reasonable access to the job site because Complainants did not want to have local people do the work. This is not a reasonable excuse to deny access. 11. The open hostility between these parties was abundantly clear from the administrative hearing. They cannot even have a reasonable discussion about their differences without resorting to nearly shouting and making accusations of the other party being a liar. It would be highly undesirable to have this Respondent return to the job site to perform any of the corrective work. 12. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.1, 2, 7, 22, 23, 3 (namely, A.A.C. R4-9-108, Workmanship Standards), and 13 (namely, A.R.S. § 32-1158). 3. There is no substantial evidence that Respondent abandoned the project in violation of A.R.S. § 32-1154.A.1. 4. The greater weight of evidence proved that Respondent did violate A.R.S. § 32-1154.A.2 and 22 by deviating from the plans and specifications and local building codes, especially in the failure to obtain a pre-treatment for termites, or provide any proof of having done so. 5. Respondent’s several failures to perform the work up to minimum Registrar of Contractors and industry standards constitutes a violation of A.R.S. § 32-1154.A.3 and A.A.C. R4-9-108, Workmanship Standards. 6. Respondent’s failure to properly complete the corrective items on the Inspector’s CWO constitutes a violation of A.R.S. § 32- 1154.A.23. This is true although in at least one instance Complainants denied reasonable access. There are other numerous items that could have been properly corrected and Respondent still failed to correct the items while having had reasonable access. 7. Respondent violated A.R.S. § 32-1154.A.13 and A.R.S. § 32-1158 by failing to include the jobsite address or legal description and an estimated date of completion in the written contract. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class B- License number 125438 be revoked on the effective date of this Order. It is further recommended that in the event the Registrar receives written proof acceptable to the Registrar that Respondent has caused other appropriately licensed contractors to return and make the corrections ordered by the Inspector in the CWO, and provided proof of all needed termite treatments, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license revocation shall not occur, and in lieu thereof Respondent’s Class B- License number 125438 shall be suspended for a period three calendar days, commencing on the effective date of this Order. It is further recommended that in addition to the above-provided penalties Respondent pay the sum of $250.00 to the agency by way of a civil penalty pursuant to A.R.S. § 32-11554.D. Failure of Respondent to pay the entire amount of the aforesaid civil penalty, on or before the effective date of this Order, shall result in automatic revocation of the Respondent’s contractor’s license, effective on such date. No future license shall be issued to any entity consisting of persons associated with Respondent as defined at A.R.S. § 32-1101.A.5. It is further recommended in addition to the above-provided penalties, if any, that as an express condition for the next annual renewal of Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the agency then in effect, Respondent be required to pay an additional $200.00 into the Arizona Registrar of Contractors Residential Contractors’ Recovery Fund, as authorized by A.R.S. § 32- 1132.B. Failure to pay such additional deposit into the Fund shall result in the rejection of any renewal application and a continued suspension of the Respondent’s license until payment is made and the renewal issued. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 28, 2009.

______________________________________ Grant Winston 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 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com