ALJDEC decisions subject to certification as final

08F-S0225-ROC · Registrar of Contractors · 2009-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2009; 1:30 p.m. APPEARANCES: Complainants Mr. Michael and Ms. Gretchen Boyd represented themselves. Respondent Mr. Phillip David Faulk doing business as Faulk Residential Construction was represented by Mr. Michael Schern, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainants Mr. Michael and Ms. Gretchen Boyd filed this Complaint against the Respondent Mr. Phillip David Faulk doing business as Faulk Residential Construction seeking corrections to be made to the Respondent’s construction of their new residence in Willcox, Arizona. 2. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves who conducted a job site inspection and issued a written Corrective Work Order (CWO) dated June 25, 2008. The CWO directed Respondent to make several corrections to the home and to do so within 15 calendar days of the CWO, which was a reasonable amount of time. Many of the items listed by Inspector Nieves were not corrected by Respondent for a number of reasons. 3. According to the parties’ contract the Complainants were to assist in the construction of the home, and there is no clear evidence relative to some items in need of correction to find as a factual matter which party is responsible for correcting that particular item. In other instances clearly the contract or the parties’ understanding excluded Respondent from performing that work. All parties agree that the contract was not for Respondent to complete a turnkey project; that is, a project fully completed when Respondent finished the scope of work. 4. Respondent did try to return and make corrections but on at least one occasion the Complainants were not home at the time Respondent had communicated to them that he would be there to perform work. The parties gave conflicting testimony as to whether the Complainants positively told Respondent they did not want him on their property. 5. Inspector Nieves did not have the benefit of a copy of the contract when he conducted his job site inspection. Complainants did not allow Respondent on the property when Inspector Nieves conducted the job site inspection. Therefore, Inspector Nieves had heard only the Complainants’ version of the situation when he wrote his CWO. 6. The record as a whole proved only that one item needs further correction and that is an interior door that does not close properly. The door was replaced by Respondent but still needs some adjustment or replacement. This is item number 3 on the CWO’s list of Items 1-36. 7. 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, 23 and 3 (Namely, A.A.C. R4-9-108, Workmanship Standards). 3. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.3 by the poor workmanship of the door that does not close properly.

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 057078 be suspended until such time as the Respondent has properly corrected the door that does not close properly. It is further recommended that in the event the Respondent properly performs the correction to the door, and submits written proof to the Registrar acceptable to the Registrar, on or before the effective date of this Order (40 days after the date of certification appearing on the Order), then the above-provided license suspension shall not occur and Citation and Complaint S08-0255 shall be closed. 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, July 8, 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 Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com