ALJDEC decisions subject to certification as final

09F-5024-ROC · Registrar of Contractors · 2010-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2010 APPEARANCES: Irene Lignos appeared personally. Moffit and Son Construction, Inc. did not appear. 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. Moffitt and Son Construction, Inc. (“Respondent”) is the holder of License No. 224373, a Class K-61 contracting license issued by the Registrar of Contractors (“Respondent”). 2. Irene Lignos (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent pertaining to a remodeling project at Complainant’s residence in Buckeye, Arizona. The Registrar designated the Complaint as Case No. 09-5024. 3. The Registrar issued a Citation and Complaint in Case No. 09-5024 charging violations by Respondent of A.R.S. § 32-1154(A) (1), (17), (18), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1158. 4. The Registrar forwarded Case No. 09-5024 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. 09-5024 advising the parties of the time, date, and location of the hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 7. On April 22, 2008, the parties entered into a written contract, which provided for the following scope of work: The scope of work shall include the re-design and addition of the existing family room, dining room. The work is to be contained to the northwest side of the house. Contractor will furnish all labor and materials, except any materials noted in itemized estimate, to construct and complete, upon the project, in a good workmanlike manner.

8. The parties’ contract fails to contain the following items: Respondent’s contracting license number; the estimated date of completion for the project; and language advising Complainant of her right to file a written complaint with the Registrar. 9. Respondent’s contracting license was suspended from March 25, 2008 to May 7, 2008, for lack of application fees. Therefore, Respondent entered into the contract with Complainant and performed work on the subject project while its contracting license was suspended. 10. In response to the filed Complaint, the Registrar’s assigned inspector, Rick Oelke, performed a jobsite inspection to view the Complaint items. That inspection resulted in Inspector Oelke issuing a Corrective Work Order dated May 1, 2009, which addressed each of Complainant’s Complaint items as follows: Exterior Paint – work completed prior to jobsite inspection.

Replace broken window – jobsite agreement for contractor to replace the broken glass.

Two exterior motion sensor lights – work completed prior to jobsite inspection.

Finish security installation – work completed prior to jobsite inspection.

Repair stem wall – work completed prior to jobsite inspection.

Repair drip system – work completed prior to jobsite inspection.

Fix bird guard – Bird stop is required at all eave lines with open ended [sic] high profile tiles. Contractor should correct the condition by appropriate means.

Install sun screen – jobsite agreement for contractor to supply and install “golf-course” type sunscreens on newly installed vinyl windows.

Complete floor installation (a) – Wood flooring should be installed under the refrigerator area. It is this Inspectors [sic] opinion that the contractor should be responsible for labor to install the product; however, cost of material should be absorbed by the party responsible for the initial purchase of the material.

Complete floor installation (b) – Damage to the wood flooring in front of the refrigerator area was agreed to have been reported to the contractor immediately upon completion of the wood flooring. Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in (phase completion). Damaged wood flooring in front of the refrigerator should be corrected by the contractor.

Complete floor installation (c) – Areas of wood flooring “needing stain where separation shows, and removal of glue and paint from the floor” were not observed at the time of the jobsite inspection. No action required by the contractor at this time.

Install two fans with remotes – Unable to determine contractor responsibility at the time of the jobsite inspection. No action required by the contractor at this time.

Install electrical outlet for neon – jobsite agreement for contractor to supply and install 1 receptacle and switch for the ledge above the kitchen entrance.

Supply theater equipment – jobsite agreement that the homeowner is entitled to a $2000.00 allowance for theater equipment. Contractor has agreed to purchase equipment that is to be specified by the homeowner. Contractor acknowledges warranty responsibility on materials and/or equipment provided by the contractor.

Install kitchen corner and under cabinet lights – work completed prior to jobsite inspection.

Finish painting floor molding and match color – work completed prior to jobsite inspection.

Touch up interior paint – jobsite agreement for contractor to touch up kitchen, kitchen island, and TV niche areas (including minor drywall repairs).

Install shelves in entertainment unit – jobsite agreement for contractor to install paint grade MDF shelving in the entertainment niches. Right niche to have 2 shelves, left side to have 1 shelf. Spacing of the shelving is to be determined by the homeowner and provided to the contractor in writing.

No heat or air conditioning in room addition – unable to confirm complaint item at the time of the jobsite inspection. No action required by the contractor at this time.

Repair wood floor in hallway – it is this Inspectors [sic] opinion that the attempted repair to the wood flooring in the hallway is incomplete. Repairs should provide a reasonably matching color, texture, and gloss to the product.

Loose wood flooring at doorway to bedroom # 2 – Hardwood floors should be properly secured to the substrate below. Contractor should make appropriate corrections.

11. Inspector Oelke testified that Respondent attempted repairs to the wood flooring, but those repairs do not meet workmanship standards. There were exposed nail heads and improper transition in the flooring. 12. Notwithstanding a lack of directive in the Corrective Work Order, Inspector Oelke opined that the HVAC system for the room addition is inadequate. The ductwork runs off an existing run to the dining room. The one feed for the dining room is not adequate for other areas of the house. 13. Complainant testified that Respondent accomplished the following remedial work: the repair of the bird guard; the installation of the sunscreens; the installation of fans with remote controls; the completion of the electrical outlet for neon; the completion of the kitchen corner lights; the completion of the floor molding; the completion of the interior painting; and the installation of the shelves in the entertainment unit. 14. Respondent failed to supply or to pay Complainant for the theater equipment. 15. Inspector Oelke opined that Respondent abandoned the subject project as evidenced by the passing of a significant amount of time in which Respondent could have completed its scope of work. It was only after Inspector Oelke issued the Corrective Work Order that Respondent returned to the residence to address the Complaint items found to be its responsibility. 16. Respondent performed electrical and HVAC work, which exceeds the scope of its Class K-61 contracting license. Such work should have been subcontracted to appropriately licensed contractors. 17. Respondent’s abandonment of the subject project, its contracting to perform the scope of work while its contracting license was suspended, its failure to fully comply with the Registrar’s written directive to perform remedial repairs to its deficient workmanship and to comply with the parties’ contract, and its out of scope contracting work are wrongful acts resulting in substantial injury to Complainant. 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), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (17), (18), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 224373 shall be revoked on the effective date of the Order entered in Case No. 09-5024. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 09-5024 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided license revocation and civil penalty, Respondent shall pay the sum of $1,000.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 09-5024 shall result in the automatic permanent revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, March 29, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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