ALJDEC decisions subject to certification as final

09F-H0237-ROC · Registrar of Contractors · 2009-11-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2009 APPEARANCES: Complainant: Randi Metchnikoff appeared, pro per. Respondent: Respondent failed to appear either through authorized representative or counsel. Registrar of Contractors: Inspector William Redman appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing via videoconference at the time, date and place set forth in the September 24, 2009 Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”). 2. Complainant Randi Metchnikoff (“Complainant”) is the owner of a residence located at 3802 E. Suffock Avenue, Kingman, Arizona (“premises/project”). 3. Respondent C Z Construction General Contractors, L.L.C. (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 183714, Class B- (General Residential) issued by the ROC on March 31, 2003. Peter Darius Carpentieri (“Carpentieri”) is a member and the qualifying party for the license. A review of the licensing database maintained by the Registrar indicates that this license was suspended April 1 -11, 2009, and April 1, 2009, for non-renewal. 4. Complainant filed a Complaint with the Registrar on January 5, 2009, annexed to which was a list of seven (7) problem items with the new build premises for which she requested that Respondent “repair, replace or reimburse to hire someone.” 5. Registrar Inspector William Redman (“Redman”) conducted a jobsite inspection on January 22, 2009, and issued a Corrective Work Order on January 23, 2009 (“CWO”), which required Respondent to perform corrective work on items 1, 2, 3, 4, 5 and 8. No remedial action was required on items 6 and 7. 6. On June 4, 2009, the Registrar issued a Citation and Complaint in Case No. H09-0237 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7), (23) and (3) (namely, R4-9-108, the workmanship rule). 7. Respondent filed an Answer on June 19, 2009, wherein it affirmatively asserted, inter alia, that all of its subcontractors’ work was outside the two year warranty period and/or they were out of business, Respondent closed its business on March 31, 2008, and suggested that it was best for Complainant to proceed to the Registrar’s Recovery Fund. 8. At the hearing, Complainant testified and submitted Exhibits C- through C-12 which were marked, admitted and considered. 9. Respondent failed to appear either by authorized representative or counsel. 10. Inspector Redman testified on behalf of the Registrar and described his observations and conclusions on his initial jobsite inspection and October 28, 2009 pre-hearing jobsite inspection. 11. On the credible testimony and uncontroverted evidence of record, the following salient facts are important to note: a. Complainant purchased the premises in October 2007 and moved-in in November 2007; b. Respondent was the general contractor of the newly built premises; c. Within a very short period after move-in, Complainant began experiencing problems with various aspects of the premises including grading (CWO item 1), concrete (CWO item 2), cracked kitchen tiles (CWO item 3), flaking stucco (CWO item 4), defective smoke detectors (CWO item 5), and damaged kitchen sink and countertop (CWO item 8);[1] d. As of Inspector Redman’s October 28, 2009, pre-hearing jobsite inspection, no corrective work had been performed on CWO items 1, 2, 3, 4, or 8 and, with respect to CWO item 3 (tile), the condition had worsened and more tiles had cracked and/or were in need of repair; and, e. Complainant testified that the above-referenced conditions remain and/or have worsened and that when she contacted Carpentieri he advised that Respondent would not perform any corrective work on the project due to a lack of money.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. H09- 0237 charged Respondent with possible violations of A.R.S. §32-1154 (A) (7), (23) and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

…

23. Failure 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 written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (23) by failing to comply with the Registrar’s January 23, 2009 Corrective Work Order regarding the following items: (1) grading, (2) concrete, (3) cracked kitchen tiles, (4) flaking stucco, (5) defective smoke detectors, and (6) damaged kitchen sink and countertop. 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (3) and A.A.C. R4-9-108 by failing to construct in a workmanlike manner the Corrective Work Order items set forth in Conclusion of Law 4. 6. This tribunal determines and concludes that based on the violations set forth in Conclusions of Law 4 and 5 above, Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (7) as charged in the issued Citation. 7. It is further determined and concluded by the weight of credible, probative and relevant evidence that Respondent failed to act in good faith during and subsequent to construction of the premises by failing to build same to workmanlike standards and comply with the Registrar’s CWO. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing without legal or reasonable excuse.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the Class B- license of Respondent be revoked unless the Registrar receives written proof that Respondent has remitted to Complainant a sum adequate to allow Complainant to retain a third party contractor to correct those items referenced in Conclusion of Law 4. IT IS FURTHER RECOMMENDED that, if Respondent remits to Complainant a sum adequate to allow Complainant to retain a third party contractor to correct said items on or before the effective date of the Registrar’s Order then, in that event, no license revocation shall take place. IT IS FURTHER RECOMMENDED that, in the event Respondent timely remits to Complainant the above-referenced sum, Respondent’s Class B- license be suspended for a period of sixty (60) days commencing on the effective date of the Order entered in this matter.[2] Done this day, November 10, 2009.

/s/ Brian E. Smith Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Although the Complaint also listed problems with the master bathtub and rubber strip on shower door (CWO items 6 and 7, respectively), Inspector Redman determined that the condition and/or repair performed by Respondent were within acceptable standards. As a result, Complainant did not contest these items at the hearing. [2] 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 in this matter will be forty (40) days from the date of that certification.

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