ALJDEC decisions subject to certification as final

08F-T0200-ROC · Registrar of Contractors · 2010-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: March 23, 2010 at 8:00 a.m. APPEARANCES: Complainant Scott Christie did not appear; Respondent Alternative Custom Remodeling LLC appeared through Enrique Zamora, Jr., its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On May 23, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC195822, Class B for residential general contracting to Respondent Alternative Custom Remodeling LLC, a limited liability company. Enrique Zamora, Jr. is Respondent’s qualifying party and managing member. On August 13, 2007, the Registrar received a complaint against Respondent’s license from Complainant Scott Christie. The complaint alleged that Respondent had added two rows of block to an existing block wall and had built a 4’ x 5’ wall on the north side of Complainant’s house pursuant to a verbal contract in the amount of $800.00. Complainant attached a 2-page single-spaced, typewritten letter to his complaint, in which he alleged that Respondent’s work was poor and that Respondent had caused collateral damage and had failed to clean up the jobsite. Complainant provided his address and the jobsite address as 5761 E. Vuelta De Nuestro Pueblo, Tucson, AZ 85756. The complaint was assigned to Inspector Greg Koeneman, who sent a copy of the complaint to Respondent for its immediate attention. On or about August 28, 2007, Mr. Zamora provided six-page, single-spaced, typewritten initial response to the complaint. The Inspector Koeneman performed a jobsite inspection and, on September 6, 2007, issued a Corrective Work Order (“CWO”) to Respondent, requiring it to correct within fifteen days fourteen specific items of workmanship, as follows: 1. Column at block wall not plumb left of garage: Exceeds ¼” Registrar of Contractors specifications . . . . 2. Mortar splatter and smears on new and existing wall . . . . 3. Stucco damage on wall of garage near base of block wall . . . . 4. Mortar splatter on personal items in back yard . . . . 5. Excessive number of chipped blocks . . . . 6. Wall paint does not match subdivisions HOA standards . . . . 7. Poor striking at added courses . . . . 8. Excessive lippage at faces of blocks . . . . 9. Paint overspray on personal items and neighboring wall . . . . 10. On block needs mortar fill . . . . 11. Mortar joints are not consistent with existing wall . . . . 12. Clumps of mortar left on ground . . . . 13. Block addition of column on south wall is offset by ¼” . . . . 14. Quality of blocks are [sic] not consistent with existing . . . .

At some point, Complainant requested that the Registrar issue a citation against Respondent’s license. On March 11, 2008, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(7),[1] (23),[2] (3) (namely A.A.C. R4-9-108),[3] and (13) (namely A.R.S. § 32-1124(B)).[4] The Citation and Complaint allowed Respondent to file a written answer no later than March 26, 2008. On April 18, 2008, the Registrar received Respondent’s written answer to the Citation and Complaint, which stated that Respondent had complied with the CWO for all items except Item No. 14. Respondent alleged that it had replaced the blocks and had commenced painting the wall with the paint that Complainant had chosen. At that point, Complainant had excluded Respondent from the property. On April 29, 2008, the Registrar informed Respondent that, because its written answer was late, a default decision and order would be issued. Respondent could petition for rehearing within 35 days of the date of the default order or appeal the matter to superior court within 40 days of the date of the default order. The Registrar issued a Decision and Order, which was dated June 11, 2008. The Decision and Order concluded that, by failing to file a timely written answer to the Citation and Complaint, Respondent had admitted the charged violations. The Decision and Order required Respondent to file written confirmation that it had complied with the CWO on or before August 20, 2008 or file a petition for rehearing on or before August 15, 2008. The Decision and Order also required Respondent to pay a civil penalty in the amount of $250.00. On July 16, 2008, the Registrar received a letter from Complainant, which stated that Respondent had attempted to repair the work on September 13, 2007. Complainant requested a compliance inspection. The address on Complainant’s letterhead was the same as on the complaint, 5761 E. Vuelta De Nuestro Pueblo, Tucson, AZ 85756. On July 21, 2008, the Registrar issued an order quashing the default Decision and Order, because “it had been determined that the Registrar erroneously entered an incorrect issuance date and date of mailing of June 11, 2008.” On July 22, 2008, the Registrar issued a Reissued Decision and Order, which concluded that, by failing to file a timely written answer to the Citation and Complaint, Respondent had admitted the charged violations. The Reissued Decision and Order required Respondent to file written confirmation that it had complied with the CWO on or before August 31, 2008 or file a petition for rehearing on or before August 26, 2008. The Reissued Decision and Order also required Respondent to pay a civil penalty in the amount of $250.00. On August 22, 2008, the Registrar received a letter from Mr. Zamora, which again stated that Respondent had completed all but one of the items on the CWO. Complainant had not allowed Respondent to perform the final painting on the job and demanded that Respondent “replace his entire wall from the foundation up.” The Registrar treated Mr. Zamora’s letter as Respondent’s request for rehearing. On September 3, 2008, the Registrar sent a copy of the letter to Complainant for his response. On September 4, 2008, the Registrar received Complainant’s 3-page, typewritten single-spaced opposition to Respondent’s petition for rehearing. Complainant reminded the Registrar that he had requested a compliance inspection so the Registrar “can see how bad the wall still looks.” Complainant also sent photographs of the wall. Complainant did not provide an address on his September 4, 2008 correspondence. On September 11, 2008, the Registrar returned Complainant’s photographs to him “[s]ince we are unable to properly store this information . . . .” On January 30, 2009, the Registrar denied Respondent’s request for rehearing because “there is no sufficient showing of any compelling legal or factual basis for the granting of any rehearing and for the further reason that the findings, conclusions and recommendations contained in the prior Decision and Order are fully supported by the record.” The previously entered Decision and Order would be in full force and effect on March 11, 2009, unless a Stay Order was secured from the Superior Court. On March 9, 2009, Respondent paid the Registrar a civil penalty in the amount of $250.00. On March 18, 2009, the Registrar informed Respondent that its license was suspended, effective immediately, until it produced proof of compliance with the previously entered Decision and Order. On April 24, 2009, the Court in Pima County Superior Court Case No. C20091703, Christie v. Alternative Custom Remodeling, issued an order, denying Respondent’s request for appeal because it had not been timely filed. On June 10, 2009, the Registrar received Respondent’s “Letter of Compliance,” which stated that Inspector Koeneman was satisfied with the corrective work that Respondent had done on September 6, 2007. Mr. Zamora again stated that Complainant would not allow Respondent to complete painting the wall unless it consented to build a new wall. On July 10, 2009, the Registrar received Respondent’s “Request for Closure,” in which Mr. Zamora stated as follows: I am writing this letter . . . for the sole purpose to get this case closed. I humbly ask for your office to please re-instate my license and allow me the opportunity to continue to work in our community. This case has been lingering on now for almost two years. It has become a serious detriment to my family and my livelihood. Due to the fact that I have been suspended and unable to do contracting work and make the income I am capable of earning, it has caused stresses on my financial, personal and relationship aspects of my life.

I have been on hold with the Home Depot awaiting the conclusion of this complaint (who I sub-contract with) and have been informed that if the suspension is not lifted I will be removed from their list of contractors. I have invested $15,000.00 in a gutter extruding machine that affords me the ability to conduct this type of business for the Home Depot. This is a hard contract to obtain, and if I am removed from the list I will no longer be able to contract for them. I have invested a lot of time and money in building this [rapport] and am in serious jeopardy of losing what I have worked so hard to establish.

I’ve complied with the information I received from your office back in June, by sending a Certified Letter to [Complainant] explaining that I did comply with the request from the ROC and have met the requirements set forth in the Letter of Compliance that was issued by the Tucson ROC office. I sent the letter via Mission Station Post Office to [Complainant]. The letter was never picked up by [Complainant]. The post office left three separate notifications to inform [Complainant] that there was a letter waiting for him at his local Post Office. He refused to take his notification slip and claim his letter. By [Complainant] not wanting to respond we are unable to move forward.

I have complied with the request of the ROC and the letter of Compliance. I feel that I have tried to do what is right with [Complainant] so that it could be a win, win situation and we could move forward in our lives. Since [Complainant] has not taken the opportunity to try to resolve the issue, and is adamant in his demands that he get a complete new wall (I did not build the wall), I ask that the Suspension be lifted thus allowing me to conduct business as before.

As I have mentioned in prior correspondence with your office, I have been in business for almost six years and I have never had any form of complaints with any of the clients I have served. I have served clients from all aspects of life. I have conducted work for individuals ranging from those with a PHD, Police Officers, and retired military even to the little old lady that needs a break. Clients I have rendered services to have offered to send affidavits to the effect that they were satisfied with my work and would recommend me to their family and friends. I pride my company on Honesty and Integrity and have worked hard to have a good reputation for my company in our community. . . .

On July 23, 2009, the Registrar received a letter from Complainant, which requested that the Registrar not reinstate Respondent’s license. Complainant stated that he was “in the process of getting quotes to have the recovery fund cover the cost of the damages.” Complainant provided the address of 6934 E. Calle Ileo, Tucson, AZ 85710 on the July 23, 2009 letter. On October 20, 2009, Mr. Zamora on behalf of Respondent submitted a second Request for Closure to the Registrar, in relevant part as follows: Good afternoon, I ask that you please take a moment of your time to kindly review the case and provide me with an update on my case regarding [Complainant].

I am at your mercy to please expedite the ruling on this case as it has been going on for over two years. As you are well aware I have been suspended, thus losing my contract with the Home Depot, which was my main source of contracting. I am now unable to maintain my insurances to keep in good graces with the providers I contract with. I am unable to contract and am therefore unable to generate the funds to continue to operate.

I am also working with Lisa Ramirez of the AZ Department of Revenue, to pay back taxes I owe to the State. I am asking to be granted permission to continue to contract. I pride myself and my company on HONESTY AND INTEGRITY. I have been working on getting all my dealings in order so as to continue to contract for the State of Arizona. Allow me to continue in being a pillar in my community by providing services to our community. I have been in business for just over six years and could provide you with written testimonials of the true dedication I give to my clients and customers. I have never had any problems with anyone. So I ask that you please give me an opportunity to save my business and continue in my services.

Mr. Koeneman of the Tucson ROC felt I was sincere and that I did conduct myself in the correct manner with [Complainant]. Mr. Koeneman is also in agreeance [sic] that I did correct all that he requested.

It is for these above mentioned reasons, I most humbly ask that your office please contact me at your earliest convenience and bring me up to date on the current situation. And instruct me to give me guidance so that I am afforded the opportunity to try and save my company.

Once again I thank you for taking the time out of your day to address this request. . . .

On December 4, 2009, the Registrar issued an Order Setting Compliance Hearing and Lifting Suspension, in relevant part as follows: On or about July 23, 2009, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that the necessary work is still incomplete, and that he did not deny access to Respondent to perform the work. On or about October 20, 2009, Respondent submitted further written correspondence with the Registrar in this matter providing, among other things, that the assigned Registrar Inspector has concluded that Respondent complied with the Registrar’s directives.

In view of the foregoing and with good cause appearing, IT IS ORDERED that this matter be set for a Compliance Hearing in the expedited course of docketing to determine 1.) the adequacy of the corrective work performed by Respondent and 2.) any unreasonable denial of access on the part of Complainant.

During the pending of such hearing, IT IS FURTHER ORDERED that the suspension of Respondent’s License No. 185722, as relates to this matter, imposed on March 18, 2009, shall be lifted on the date of this Order.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a compliance hearing. On January 17, 2010, the Registrar issued a Notice of Compliance Hearing, to be held at the Office of Administrative Hearings in Phoenix on March 23, 2010 at 8:00 a.m. The Registrar mailed the Notice of Compliance Hearing to Complainant at 5761 E. Vuelta de Nuestro Pueblo, Tucson, AZ 85756 and at 6934 E. Calle Ileo, Tucson, AZ 85710. On March 18, 2010, according to the docket of the Office of Administrative Hearings, Inspector Koeneman left a message that he had attempted to perform a prehearing inspection at the jobsite and had discovered that Complainant no longer lived at that address. A hearing was held on March 23, 2010. Mr. Zamora testified on behalf of Respondent, presented the testimony of Fay J. Spurlin, M.S., C.R.C., C.V.E., C.C.M., and submitted thirteen exhibits. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Complainant additional travel time and the hearing did not conclude until approximately 8:50 a.m., Complainant did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to request a continuance or that the time for the start of the hearing be further delayed. Complainant did not present any evidence that Respondent had not complied with the September 6, 2007 CWO or that he had allowed reasonable access for such compliance. Additional Hearing Evidence Mr. Zamora credibly testified on Respondent’s behalf consistently with his various letters to the Registrar. Respondent had corrected in a professional and workmanlike manner the first 13 items on the CWO. With respect to the final item, the mismatched block that had been added to the existing wall, Mr. Zamora credibly testified that Respondent had replaced the block and was preparing to paint the block with paint that Complainant had approved. Complainant at that point had asked Respondent to leave the jobsite and had refused to allow access unless Respondent agreed to replace the whole wall, which was beyond the original scope of work and which the CWO did not require. Ms. Spurlin testified that she has known Mr. Zamora for 33 years. Since Respondent was licensed, it has performed extensive work for her, including a block wall extension similar to what it did for Complainant. Respondent has also installed tile in her bathroom and remodeled her living room and kitchen. Ms. Spurlin testified that Mr. Zamora and Respondent’s employees had always behaved professionally and ethically and had rendered timely services. They followed her instructions. Their work was first rate. Mr. Zamora also submitted eleven letters of reference from persons for whom Respondent had performed contracting or who know him, which were all written shortly before the compliance hearing, as follows: 1. Benjamin A. Thomas has worked over 40 years in executive engineering positions for several companies, including General Electric Corp, 3Com Corporation, and Amdahl Corporation. Mr. Thomas described Mr. Zamora as “a person of integrity, sincerity, and honesty, with a positive and optimistic outlook.” Respondent performed extensive hardscape work in the yard and remodeling in the interior of Mr. Thomas’ home over several months. Mr. Thomas described Mr. Zamora and his crew’s work as “timely and professional” and “exceptionally performed.” Mr. Thomas highly recommends Respondent. 2. Maria Consuelo Castillo resides in Mr. Zamora’s neighborhood and has known him and his family for 15 years. Mr. Zamora volunteers at Ms. Castillo’s daughter’s school and Respondent performs repairs at no cost to the school. Respondent has done work for the neighborhood, including work that Mr. Zamora paid for out of his own pocket. Respondent’s work has always been “quoted in a very professionally [sic] way and is excellent quality.” 3. Lynn Marrs, the Manager of the La Reserve Community Association, has been doing business under contract with Mr. Zamora and Respondent for 5 years “because of the fine workmanship, his ability to work with our homeowners, [and] his spotless clean-up.” Mr. Zamora is “true to his word, work and scheduling of projects.” Respondent has done extensive work for La Reserve Community Association, including repairing block walls, tile or flat roofs, and stone work. 4. Patty Tilghman, a Risk Analyst for Tucson Electric Power, a Unisource Energy Company, Risk Management Department, has hired Respondent to perform various jobs. Her predecessor also worked with Respondent. Mr. Zamora always responds promptly to requests and performs jobs in a complete and professional manner. Ms. Tilghman recommends Respondent to other companies and to her personal friends. She knows that, if she hires Respondent and Mr. Zamora, she will get “honesty, hard work, integrity, professionalism and a job done in a manner that truly represents Unisource and Tucson Electric Power.” 5. Anthony G. Scalone, Jr., the Vice President of Camelback Professional Marketing and Sales Training, stated that, “[i]n a ‘quick fix’ era where some contractors are unwilling to take the time to explain even the simplest of details, Mr. Zamora demonstrates time and time against that it is his responsibility to educate clients through every phase of the construction process.” Mr. Zamora has always “exhibited . . . . his knowledge and passion for his profession.” Mr. Scalone refers anyone who is looking for a general contractor to Respondent. 6. Erna K. Kaplan owns several apartment complexes, where Respondent has performed numerous repairs and upgrades. She has also hired Respondent to perform an extensive remodel at her home. Ms. Kaplan stated that all the projects that Respondent and Mr. Zamora performed “were completed on time, on budget and without compromise of quality.” Mr. Zamora communicated regularly with Ms. Kaplan about the projects and “would put in any hours needed to complete each task.” Ms. Kaplan intends to keep working with and referring work to Mr. Zamora and Respondent. 7. Thomas W. Kolter has known Mr. Zamora for over 20 years, since Mr. Zamora was Mr. Kolter’s administrative assistance at Zenitech Corporation in Tucson. Mr. Zamora has an excellent work ethic and has always shown the highest standards of honesty and integrity. He is involved in the community. 8. Manuel R. Gomez has known Mr. Zamora for approximately two years, having met through their daughters’ softball. Mr. Gomez stated that he is “truly impressed” by Respondent’s construction. 9. Margarita Y. Gómez apparently is Mr. Gomez’ wife. Mrs. Gómez described Mr. Zamora as a kind and compassionate man who helps even strangers when no one is looking. He contributes to the community. 10. David James Christy personally vouched for Mr. Zamora’s integrity. Mr. Christy met Mr. Zamora in August 2009, when Mr. Christy began repairing Mr. Zamora’s computers. 11. Stephanie Fisher Valenzuela, the Vice President of Business Development at NBAZ, has known Mr. Zamora for 12 years. Ms. Valenzuela is the president of the Homeowners’ Association in the neighborhood where both she and Mr. Zamora reside. Mr. Zamora has donated Respondent’s construction services to needy members of the community. Respondent’s work is always first rate. CONCLUSIONS OF LAW 1. The notices of the hearing that the Board mailed to Complainant at the jobsite address and at the address later provided were reasonable and Complainant is deemed to have received notice of the hearing.[5] 2. This matter lies within the Registrar’s jurisdiction.[6] 3. Respondent bears the burden of proof and must establish that it has complied with the Registrar’s final Decision and Order in this matter or that Complainant denied reasonable access for Respondent to comply with the Registrar’s order by a preponderance of the evidence.[7] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[9] 5. The record in this matter establishes that Respondent has paid the civil penalty that the Registrar ordered it to pay as a condition of reinstating its license. 6. Respondent through Mr. Zamora’s credible testimony established that Respondent had complied with the September 6, 2007 CWO in this matter by repairing in a professional and workmanlike manner the first 13 items. 7. With respect to the last item on the CWO, correcting the mismatched blocks that Respondent had laid on the existing block wall, Respondent through Mr. Zamora’s credible testimony established that Complainant denied reasonable access for Respondent to complete this repair. 8. By failing to appear or present any evidence at the duly noticed compliance hearing, Complainant has waived any right to contest Respondent’s evidence or to prolong this matter any further. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar should close without further discipline Complainant Scott Christie’s complaint in Case No. T08-0200 against Respondent Alternative Custom Remodeling LLC’s License No. ROC185722, Class B-. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, March 24, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection, which has since been amended, included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [4] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in any material respect to comply with this chapter.” The specific statute violated is A.R.S. § 32-1124(B), which requires that licensed contractors to include their license number, which “shall be preceded by the acronym ‘ROC,’” on “all written bids submitted by the license and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] See 32-1101 et seq. [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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