ALJDEC decisions subject to certification as final

09F-H0203-ROC · Registrar of Contractors · 2009-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2009 APPEARANCES: James Burt appeared personally. C Z Construction General Contractors, L.L.C. did not appear. Inspector Bill Redman of the Registrar of Contractors testified. 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. C Z Construction General Contractors, L.L.C. (“Respondent”) is the holder of License No. 183714, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Stephanie and James Burt (“Complainants”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent during the construction of their residence at 3778 E. Suffock, Kingman, Arizona. The Registrar designated the Complaint as Case No. H09-0203. 3. The Registrar issued a Citation and Complaint in Case No. H09-0203 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23), and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. H09-0203 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The Registrar issued a Notice of Hearing in Case No. H09-0203. The Notice of Hearing advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 6. The commencement of the scheduled 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. The Registrar’s assigned inspector, Bill Redman, performed an initial jobsite inspection in December 2008. That inspection resulted in Inspector Redman issuing a Corrective Work Order dated December 15, 2008, which contained the inspector’s following findings: 1. Replace the concrete garage floor and the concrete on the rear patio floor in a good and workmanlike manner. 2. No cracks were discovered in the interior floor tile in the dining room/kitchen. One crack was discovered in a grout line in the hall bathroom. Dining room has numerous hollow tiles due to the bond breaking between the tile and the concrete substrate. Determine the cause of the bond breaking between the floor tile and concrete and repair by appropriate methods. 3. Properly grade the entire yard to provide proper drainage from back to front. 4. The front sidewalk is within industry standards, no action required. 5. The HVAC is within standards, no action taken. 6. The block fences are within industry standards, no action required.

8. Respondent was required to perform the remedial repairs noted by Inspector Redman within 15 days from the date of the Corrective Work Order. 9. Respondent failed to perform the required remedial repairs identified in item 1 of the Corrective Work Order. 10. Complainants’ hollow tiles are found to be solidly bonded, and meet workmanship standards. 11. Respondent did not determine the cause of the bond breaking between the floor tile and concrete and did not repair those areas as required in item 2 of the Corrective Work Order. 12. Respondent did not comply with item 3 of the Corrective Work Order. 13. Complainants’ front sidewalk is determined to meet workmanship standards. Inspector Redman credibly testified that the sidewalk in not sinking. The problem is with the grading. Complainants’ house was constructed too low. Although the local building authority inspected Complainants’ house, it missed this deficiency. 14. Complainants’ HVAC system is determined to meet workmanship standards. 15. Complainants’ block fences are determined to have been constructed to workmanship standards. 16. Respondent failed to comply with the remedial repairs identified in the Corrective Work Order. 17. Respondent’s failure to correct its above-described deficient workmanship is a wrongful act resulting in substantial injury to Complainants. 18. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license was suspended by operation of law for nonrenewal on April 1, 2009. As a result of that suspension, Respondent cannot perform any remedial repairs required by the Corrective Work Order unless it renews its contracting license. 19. The Registrar’s records further reflect that there are three open complaints and one resolved/settled/withdrawn complaint listed on Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of authority to impose discipline against Respondent’s contracting license for proven statutory and regulatory violations in this matter. 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. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. The Administrative Law Judge concludes that the record does not support the charged violation. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108, 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. 183714 shall be revoked on the effective date of the Order entered in Case No. H09-0203. If Respondent renews its contracting license and then properly performs the remedial work set forth in the Corrective Work Order on or before the effective date of the Order entered in Case No. H09-0203, then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be placed on suspension for a period of five days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. H09-0203. In addition to the above-provided penalties, 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. H09-0203 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 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, December 4, 2009.

/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