ALJDEC decisions subject to certification as final

09F-1952-ROC · Registrar of Contractors · 2009-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 2009. APPEARANCES: Joel and Laura St. John appeared personally. Richard Arlen Peel, Jr. appeared personally and was represented by his attorney, Greg Eagleburger, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Richard Arlen Peel, Jr., doing business as Richard A. Peel Contracting (“Respondent”), is the holder of License No. 079870 issued by the Registrar of Contractors (“Registrar”). 2. Joel and Laura St. James (“Complainants”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent in the installation of a tile floor in their residence. The Registrar designated Complainant’s Complaint as Case No. 09-1952 3. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view Respondent’s tile installation. As a result of that inspection, Inspector Alyea issuing a Corrective Work Order dated November 10, 2008, the terms of which are incorporated herein by reference. The written directive required Respondent to timely correct the following: 1. Contractor needs to correct the fifty seven [sic] hollow tiles that were found at the inspection. Hollow tiles were in living room, breakfast nook, kitchen, dining room and hallways. 2. Remove grout that was left on tiles at installation. 3. Correct bullnose tile in hall bath that is not flush with field tile.

4. Inspector Alyea concluded that Respondent was not required to take any action for the balance of the Complaint items. 5. Complainants refused to provide Respondent with reasonable access to their home necessary to comply with the Corrective Work Order. Complainants insisted upon receiving a detailed plan from Respondent as to how the corrective work would be performed. 6. By letter dated December 9, 2008, Complainants informed the Registrar that they were denying access to Respondent and requested an administrative hearing. 7. The Registrar issued a Citation and Complaint in Case No. 09-1952 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 8. The Registrar forwarded Case No. 09-1952 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. The tile floor in question is the second one installed by Respondent. The first one was excessively deficient. 10. Respondent has been willing all along to comply with the Registrar’s Corrective Work Order to remediate his deficient workmanship, but Complainants have denied access to Respondent. Respondent’s expert, Ralph Williamson, performed an inspection of Respondent’s workmanship and authored a report dated July 31, 2009. Mr. Williamson’s proposed scope of remedial repairs is less comprehensive than the work required by the Corrective Work Order. Respondent credibly testified that he is willing to comply with the Corrective Work Order. 11. As a result of Complainants’ denial of access to Respondent, the availability of similar colored tile is a potential problem. Respondent had the opportunity to obtain similar tile when he was issued the Corrective Work Order in November 2008. 12. Respondent did not commit a wrongful act substantially injuring Complainants. Construction is not an exact science. A contractor should be given a reasonable opportunity to perform remedial repairs to its deficient workmanship. Complainants’ denial of access to their property made it impossible for Respondent to comply with the Registrar’s written directive to repair his deficient workmanship. 13. Any allegation contained in the Complaint not specifically addressed in the above Findings of Fact is found to meet minimum workmanship standards or to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation by Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(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. The evidence of record supports a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. There is no dispute that Respondent’s installation of the second tile floor fails to meet minimum workmanship standards. However, Respondent has not been permitted to perform necessary remedial repairs by Complainants. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Complainants denied access to Respondent for compliance with the Registrar’s written directive. 5. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The above-provided Findings of Fact support this conclusion. 6. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge may recommend that a licensee pay restitution to a person injured by the action of the licensee. The Administrative Law Judge concludes that Complainants’ request for restitution is not appropriate in this matter. Complainant should be given one last opportunity to correct its deficient workmanship. Therefore, the Administrative Law Judge declines to recommend that restitution be paid in this matter. RECOMMENDED ORDER Respondent’s License No. 079870 shall be suspended on the effective date of the Order entered in Case No. 09-1952 until the Registrar receives written proof, and accepts such proof, that Respondent has fully complied with Inspector Alyea’s Corrective Work Order. Any denial of reasonable access by Complainants to Respondent may absolve Respondent of complying with this condition. If Respondent provides the Registrar with written proof that he has fully complied with the Corrective Work Order, and the Registrar accepts such proof, or if the Registrar finds that Complainants unreasonably denied Respondent access to their property necessary for Respondent to comply with the Corrective Work Order, then the above-provide license suspension shall not take place, but instead the Citation and Compliant in Case No. 09-1952 shall be closed. 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, September 2, 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