ALJDEC decisions subject to certification as final

09F-2744-ROC · Registrar of Contractors · 2009-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2009 at 1:00 p.m. APPEARANCES: Complainant Won Sun Jung appeared on her own behalf; Respondent Shelly Construction LLC did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On July 22, 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC115998, Class B- for residential general contracting to Respondent Shelly Construction LLC, a limited liability company. Respondent’s address of record was 2164 E. Broadway Rd., Ste. 300, Tempe, AZ 85282. On November 7, 2008, the Registrar received a complaint against Respondent’s license from Complainant Won Sun Jung. According to the complaint, on December 12, 2007, Ms. Sun Jung had contracted to purchase a home that Respondent had built. Ms. Sun Jung had moved into the home on December 19, 2007. The last date on which Respondent had performed work was December 12, 2007. The Registrar assigned the complaint to Inspector Jack Clark. On December 12, 2008, after Inspector Clark had performed a jobsite inspection, he issued a Corrective Work Order (“CWO”) to Respondent, directing it to perform the following corrective action within fifteen days: Complaint 1 unusual and numerous cracks in entry, patio, and garage concrete None of the cracks that were pointed out were 1/16” wide and they all meet standards at this time. No action required.

Complaint 2 Improper soil preparation The homeowner pointed out the hole under the concrete at the front of the house. The soil has receded and exposed the fact that there is no footer or turn-down under the concrete of the bay or pop-out. The contractor is to correct by the appropriate means.

Complaint 3 Large gaps and voids between the weep screeds and stem walls There are areas where the weep screed does not meet the stem but it is firmly attached to the framing. No action required.

Complaint 4 Cracks in master-bedroom ceiling There is a minor crack in the drywall ceiling at a joint. The contractor is to correct by the appropriate means.

Complaint 5 moisture entry and big cracks at wall and baseboards in master-bedroom There is a large gap in the baseboard that has been partially filled with caulk. The contractor is to correct by the appropriate means.

[Emphases in original.] On January 5, 2009, the Registrar received Complainant’s request for hearing. On May 1, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(7), (23), and (3) (namely A.A.C. R4-9-108). Respondent timely filed a written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that the claimed deficiencies had been repaired. The address on the letterhead on which Respondent’s answer was written was 2164 E. Broadway Road, Suite 300, Tempe, Arizona 85282. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. On June 22, 2009, the Registrar issued a Notice of Hearing, setting a hearing on September 8, 2009 at 1:00 p.m. On August 12, 2009, Respondent notified the Office of Administrative Hearings that, because it “[had] suspended operations and terminated employment of all operational personnel,” no one would be available to attend the hearing. The address on Respondent’s letterhead had been scratched out and replaced with “P.O. Box 1407, Mesa, AZ 85211-1407.” On August 12, 2009, the Administrative Law Judge issued a minute entry, informing the parties that the administrative hearing would proceed on September 8, 2009 at 1:00 p.m., regardless of whether Respondent appeared. A copy of the minute entry order was mailed to Respondent at P.O. Box 1407, Mesa, AZ 85211-1407. A hearing was held on September 8, 2009. Complainant Ms. Sun Jung testified on her own behalf. Because Inspector Clark had passed away, the Registrar’s Inspector Ted Gerold testified about the prehearing inspection that he had performed. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear through a duly authorized employee or attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, and did not present any evidence to defend its license. Hearing Evidence Inspector Gerold performed a prehearing jobsite inspection on September 4, 2009 at 10:30 a.m. Although Ms. Sun Jung had been present, Respondent was unrepresented. Inspector Gerold testified that Items 2, 4, and 5 of Inspector Clark’s December 12, 2008 CWO still required correction. The drywall crack in the master bedroom ceiling had become much worse. In addition, Inspector Gerold testified that the numerous cracks in the entry, patio, and garage concrete had become much worse and exceeds 1/16”. Inspector Gerold testified that the cracks now required correction. In his opinion, there were so many cracks in the patio that an adequate repair would require the patio to be removed and replaced. Ms. Sun Jung testified that, when Inspector Clark had inspected the house, she could not show him a crack in the drywall of the living room ceiling. However, the crack in the living room has become much worse. CONCLUSIONS OF LAW 1. The notice of the hearing that the Registrar mailed to Respondent at its address of record was reasonable and it appears that Respondent actually received notice of the hearing.[1] 1. This matter lies within the Registrar’s jurisdiction.[2] 2. Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 3. Complainant has established that Respondent violated A.R.S. § 32-1154(A)(7),[6] (23),[7] and (3)[8] in its initial construction of and failure to repair the hole under the concrete at the front of the house, the crack in the master bedroom ceiling, and the large crack in the baseboard in the master bedroom. 4. Complainant also has established that Respondent violated A.R.S. § 32-1154(A)(7) and (3) in its initial construction and failure to repair the numerous cracks in the entry, patio, and garage concrete. 5. Complainant has noted in the record the crack in the drywall in the living room ceiling. Because this complaint was not included in the original complaint or CWO and Respondent had no notice of this deficiency, Respondent should not be required to repair the crack as a condition of keeping its license in good standing. The crack in the living room ceiling may be the subject of another workmanship complaint or, if Respondent fails to comply with the Registrar’s final order in this matter, a claim to the Residential Contractors’ Recovery Fund under A.R.S. § 32-1132. 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 suspend Respondent Shelly Construction LLC’s License No. ROC115998, Class B- unless the Registrar receives proof in writing that it has corrected in a professional and workmanlike manner Items 1, 2, 4, and 5 in the December 12, 2008 CWO. If, on or before the effective date of the Registrar’s final order, Respondent provides proof in writing to the Registrar that it has corrected in a professional and workmanlike manner Items 1, 2, 4, and 5 in the December 12, 2008 CWO, the Registrar shall not suspend Respondent’s license and instead close Case No. 09-2744. 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, September 8, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of September, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See 32-1101 et seq. [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] This statutory subsection includes 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.” [7] 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.” [8] 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.”

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