ALJDEC decisions subject to certification as final

08F-Y0277-ROC · Registrar of Contractors · 2009-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2009; 10:30 a.m. APPEARANCES: Complainant Mr. Alex Teniente Mendez represented himself. Respondent Century One Builders of Arizona, doing business as Reliant Window, was represented by Mr. Robert Fleck, service technician. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the record as a whole, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. This is a residential matter concerning Complainant’s two Complaints to the Arizona Registrar of Contractors over Respondent’s construction of a covered patio at Complainant’s Yuma, Arizona residence in 2008. 2. The Complaints alleged several workmanship defects, and were assigned to Registrar of Contractors Inspector Daryl McCloskey for his inspection. Inspector McCloskey conducted two job site inspections per each of the Complaints, and issued two Corrective Work Orders (CWO) relative to his findings. 3. The first of Inspector McCloskey’s CWOs is dated June 2, 2008, and directed the Respondent to correct by appropriate means the height of the four columns for the cover, and paint them, and have the City of Yuma inspect the cover. 4. The second CWO is dated July 21, 2008, and directs the Respondent to correct by appropriate means screws that missed the main beam, secure the cover to the rafter, correct the scupper, and secure the top of the patio panels with more screws and weatherproof the screws. 5. The CWOs allowed Respondent 15 calendar days to make the corrections. This was a reasonable amount of time. 6. Inspector McCloskey credibly testified at the administrative hearing that he conducted a pre-hearing inspection shortly before the hearing and found that item No. 1 of the June 2, 2008 CWO had not been corrected by the Respondent. That is, the height of the four columns had not been corrected. Also, item No. 2 of the July 21, 2008 CWO had been corrected but in doing so the Respondent cracked the rafters where the screws were inserted. This will now need to be corrected. 7. Respondent is resisting correcting the height of the columns, maintaining that the cover was installed per the plans and specifications. Complainants contend that they informed Respondent from the beginning that they intended to install fans under the patio cover, and the columns’ height was too low for fans to be installed per City of Yuma code. 8. The Complainant’s testimony is credible that the Complainants did inform Respondent at the time of the contract that they intended to install fans under the patio cover. The substantial and credible evidence also proves that the patio cover is too low for the City of Yuma to accept installation of fans under the cover. The contract and specifications are silent as to this specification. It appears that the Inspector was correct to order correction of the columns height. They need to be 8’ tall. Other than this correction and correction to the now cracked rafters, it appears that all other items have been properly corrected by the Respondent. 9. Notice is taken of the Respondent’s prior license record with the 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.2, 7, 23 and 3. 3. The greater weight of evidence proved that Respondent did not violate A.R.S. § 32-1154.A.2 by deviating from plans and specifications or building codes. The work was up to code (without fans), and not per se contrary to the plans, but was not per the parties’ agreements. 4. The greater weight of evidence did prove that Respondent violated A.R.S. § 32-1154.A.3 by violating the Workmanship Standards at A.A.C. R4-9-108., and violated A.R.S. § 32-1154.A.23 by failing to make the corrections to the columns’ height as ordered by the Registrar of Contractors Inspector, and cracking the rafters during repair efforts. 5. There is no sufficient evidence to find any other wrongful or fraudulent act on the part of this Respondent in this case in violation of A.R.S. § 32-1154.A.7 independent of the other violations already concluded to have occurred. 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 097892 be suspended until the Registrar receives written proof acceptable to the Registrar that Respondent has properly complied with Item No. 1 of the Inspector’s June 2, 2008 CWO, and properly corrected the cracked rafters. It is further recommended that in the event the Respondent properly accomplishes the above-described corrective action 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 suspension shall not occur and Citation and Complaint Y08-0277 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, the effective date of the Order hall be 40 days after the date of that certification. Done this day, September 14, 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 ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com