ALJDEC decisions subject to certification as final

09F-5230-ROC · Registrar of Contractors · 2010-02-03

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2010

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Operations Manager Lance Lucchesi, Vice President Tina Riley, and Qualifying Party Harry Lucchesi.

WITNESSES: For Complainant: Jeff Wills, ROC Inspector Brian Brewer Charmaine Brewer

For Respondent: Lance Lucchesi Tina Riley

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent Lucchesi Construction. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits A through D (photographs) and Exhibit E. The parties presented evidence and testimony at the hearing, including testimony from ROC Inspector Jeff Wills. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has failed to perform in a workmanlike manner and failed to comply with a Corrective Work Order. FINDINGS OF FACT 1. Respondent is the holder of a class B- general residential contracting license (No. 244109) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. 2. In 2008, Complainants hired Respondent to install new windows in their house. Respondent performed the work. In April 2009, Complainants filed a complaint against Respondent regarding the window installation. An inspection was performed and on April 27, 2009, ROC Inspector Jeff Wills issued a Corrective Work Order (“CWO”) that ordered Respondent to perform corrective work on the windows, including correcting or replacing trim/filler, re-caulking and cleaning up sloppy caulking, replacing one window (master bedroom), and replacing existing screens with new screens. 3. On January 13, 2010, Inspector Wills performed a pre-hearing inspection and found that much corrective work still needed to be done. He testified that all windows need to be re-addressed for sloppy caulking, trim/filler not installed in a workmanlike manner, window screens not replaced, and one location where a trim board was damaged. The record shows that Complainants gave Respondent ample opportunity to make corrections up until mid-May 2009. At that point, Complainants were so frustrated with Respondent that they decided not to give Respondent further access for corrective work and to await the formal hearing.[1] 5. This tribunal finds that Respondent had ample opportunity to perform the corrective work listed in the CWO, but failed to do so without good reason. 6. Respondent did not challenge Inspector Wills findings and conclusions. Respondent argued that it was not responsible for the damaged trim board, but the tribunal does not find that argument persuasive. The evidence supports a finding that the trim board was damaged by Respondent’s work and Respondent is responsible for correcting it so that it meets minimum workmanship standards. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(7) prohibits wrongful acts that substantially harm another. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence submitted shows violations of all cited subsections. Respondent’s work did not meet minimum workmanship standards and Respondent failed to properly and timely correct the items in the CWO. 4. However, Respondent will not be precluded from one last chance to correct its work, as Complainants have requested. Although Respondent has not been diligent, the record does not support a finding that Respondent is not competent to repair the work. 5. Respondent is found to have violated Arizona contracting statutes and is subject to disciplinary action. A review of current ROC records shows that Respondent’s license is active and in good standing. 6. The appropriate sanction in this matter is to allow Respondent one final chance to correct its work, as described in the CWO and by Inspector Wills at the hearing (including correcting the damaged trim board). If Respondent does not do so in a timely manner, its license should be suspended. Furthermore, a civil penalty is warranted for Respondent’s failure to comply with the CWO. RECOMMENDED ORDER IT IS RECOMMENDED that Class B- license 244109, held by Lucchesi Construction and Development, Inc. be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives written proof of correction of the items described above in Conclusion of Law 6 and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 09-5230 shall be closed. IT IS FURTHER RECOMMENDED that, along with any above-provided penalties, Lucchesi Construction and Development, Inc. pay a civil penalty of $250.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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 2nd day of February 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit E (timeline of events written by Complainants). [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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