ALJDEC decisions subject to certification as final

09F-5265-ROC · Registrar of Contractors · 2010-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 30, 2009 APPEARANCES: Complainant Robert Bailey appeared on his own behalf. Respondent 1st Choice Development, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent 1st Choice Development, L.L.C. (“1st Choice”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: Procedural Background On November 2, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on December 30, 2009 at 8:00 a.m. On the date and at the time scheduled for the hearing, Complainant Robert Bailey appeared on his own behalf. No one appeared on behalf of 1st Choice. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of 1st Choice, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in 1st Choice’s absence. FINDINGS OF FACT 1. 1st Choice is the holder of a Class KB-01 license (No. 210024) issued by the Registrar of Contractors (“ROC”).[1] 2. According to Mr. Bailey’s filed complaint, on May 16, 2007, he contracted with 1st Choice for the construction of his home located at 6123 West Mustang Trail in Queen Creek, Arizona. Also according to the complaint, the construction was completed on June 21, 2007. 4. On April 7, 2009, Mr. Bailey filed a complaint against 1st Choice with the ROC. In the complaint, Mr. Bailey alleged eight specific complaint items as follows: 1. Repair stucco cracks at various places on exterior; 2. Repair stucco cracks in living room entertainment center; 3. Repair garage door trim; 4. Repair missing tile grout in kitchen, bath & laundry room; 5. Repair or replace defective toilets; 6. Repair broken laundry cabinet drawer; 7. Replace scratched dining room window; and 8. Adjust exterior door so that it latches properly.

5. ROC Inspector Geoff Galgan investigated Mr. Bailey’s complaint. 6. On May 14, 2009, Inspector Galgan conducted a jobsite inspection. 7. On May 20, 2009, following the jobsite inspection, Inspector Galgan issued a Corrective Work Order (“CWO”) under which the ROC gave 1st Choice days to take corrective action with respect to most items of complaint, and included four addendum items as follows: License #210024 issued to 1st Choice Development L L C was suspended on 2/9/2009 for lack of bond and cannot do nor subcontract the recommended work listed in this directive until the suspension is lifted.

1. Exterior stucco has cracked – it is the opinion of this inspector that no cracks were visible in excess of 1/16th of an inch and the cracking was not excessive, no action required of the contractor; 2. Interior gypsum finish on the living room entertainment center has cracked – it is the opinion of this inspector that excessive cracking has occurred, contractor to correct by the appropriate means; 3. Problems with the garage door trim were repaired by the complainant prior to the inspection, no action required of the contractor; 4. Floor tile grout in the interior of the home has cracked in several areas – contractor to correct by the appropriate means; 5. Two pressure assisted water closets do not function correctly – contractor to correct by the appropriate means; 6. Laundry cabinet drawer front does not open properly – contractor to correct by the appropriate means; 7. Dining room window is scratched - it is the opinion of this inspector that a scratch was clearly visible from fifteen feet, contractor to correct by the appropriate means; 8. Exterior door dead bolt will not latch – contractor to correct by the appropriate means; 9. addendum: Column foundation at the front of the home appears to be sinking – it is the opinion of this inspector that the top of the column base appeared lower than the surrounding concrete but the inspector could not determine if this was preexisting, that is was it originally built this way or if a problem has since developed, contractor to determine cause and to correct by the appropriate means if necessary; 10. addendum: Living room floor has one cracked ceramic tile – contractor to correct by the appropriate means; 11. addendum: Atrium floor concrete has cracked around the floor drain – it is the opinion of this inspector that the cracks were hairline in nature with no visible vertical displacement, no action required of the contractor; and 12. Passage door from the laundry room to the atrium has sagged and now sticks and rubs at the jamb – contractor to correct by the appropriate means.

8. Inspector Galgan testified consistently with the findings and directives contained in the CWO. Inspector Galgan conducted a pre-hearing inspection on December 24, 2009, and testified that he observed the same conditions at the pre-hearing inspection as he did during the initial jobsite inspection, and that no corrective work has been performed. 9. Mr. Bailey submitted copies of two photographs into evidence depicting the condition of the column foundation and the cracking that has occurred. See Exhibit 2. CONCLUSIONS OF LAW In this proceeding, Mr. Bailey bears the burden to prove, by a preponderance of the evidence, that 1st Choice is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its September 4, 2009 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Bailey met his burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged 1st Choice with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible and probative evidence of record, that 1st Choice failed to perform some of its work at Mr. Bailey’s home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that 1st Choice violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued 1st Choice a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that 1st Choice failed to comply with the CWO without valid justification. Therefore, the Administrative Law Judge concludes that 1st Choice violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that 1st Choice committed wrongful acts that substantially injured Mr. Bailey by failing to perform some of its work at Mr. Bailey’s home in a professional and workmanlike manner and by failing to comply with the CWO. Therefore, the Administrative Law Judge concludes that 1st Choice violated A.R.S. § 32-1154(A)(7). 7. Based on the foregoing, it is appropriate for the ROC to impose discipline against 1st Choice’s Class KB-01 license. 8. Upon consideration of all of the facts and circumstances presented by this case, including 1st Choice’s failure to appear for hearing and its suspended and canceled license status, the Administrative Law Judge concludes that the ROC should revoke 1st Choice’s Class KB-01 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that 1st Choice’s Class KB-01 license shall be revoked on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided penalty, if any, that 1st Choice pay the sum of $250.00 to the ROC by way of a civil penalty pursuant to A.R.S. (32-1154(D). The failure by 1st Choice to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of 1st Choice’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with 1st Choice, 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, January 12, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the ROC’s official records revealed that 1st Choice’s Class KB-01 license number 210024 was suspended on February 9, 2009, for lack of bond, suspended on February 28, 2009, for lack of a qualifying party, and canceled on August 3, 2009. Such suspended and canceled license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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