ALJDEC decisions subject to certification as final

09F-L0321-ROC · Registrar of Contractors · 2010-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2010 APPEARANCES: T’shura-Ann Elias, Attorney for Complainant; Todd Jenkins, Complainant; Mauro DeLuca, Respondent’s representative; Ron Riggins, witness; Cliff Corlett, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant purchased a home built by the Respondent on or about June 15, 2005. Complainant filed a complaint with the Registrar of Contractors on or about July 16, 2007. On August 10, 2007, the Registrar of Contractors issued a Corrective Work Order. 2. On June 2, 2009, the Complainant submitted another complaint to the Registrar of Contractors and attached a copy of a home inspection of the home. On June 16, 2009, the Registrar of Contractors issued another Corrective Work Order because the corrective work that was completed in response to the first Corrective Work Order was deemed not to meet minimum workmanship standards. 3. When the matter was not settled, the Registrar of Contractors issued a Citation and Complaint and, ultimately, the matter was set for hearing. 4. On January 8, 2010, Registrar of Contractors Inspector Cliff Corlett conducted a pre-hearing inspection and found that no further changes had been made to the home. In sum, the home is experiencing numerous signs of settling that include an unacceptable amount and degree of cracking, lifting, displacement and shifting of walls, patio, flooring, etc. Although sink-holes were not verified in the first complaint and the Complainant did not appeal that decision, three sink-holes were noted in the Complainant’s yard at his inspection of the second complaint. 5. At hearing, the above facts were placed on the record. In addition, the Complainant offered the testimony of an expert, a civil engineer who specializes in foundations, working for Earth Services Southwest. He had conducted a floor level survey on the home and found that the floor of the home was not level, not flat, and significantly tilted. In his opinion, the damage was caused by settling that had not stopped yet. He stated that it would take further testing to determine what repairs were appropriate, but he found that cosmetic repairs would not correct the underlying problems. He stated that the raising of the non- bearing walls might be due to the soil conditions under the home but more testing is needed. He noted that the street also had a crack in it. He found, however, that the cracking of the home was beyond the normal amount of settling. 6. The Complainant testified that the Respondent made repairs after the first Corrective Work Order but the problems reappeared because the Respondent had not determined the cause and corrected that. He stated that the Respondent made no attempts to address the second Corrective Work Order. He said the home was built by a drainage field and the sink-holes were noted shortly after the sale, but he’d hoped they’d go away after he filled them. He said that the area has had problems with the ground sinking. 7. The Respondent testified that he purchased the land from someone who represented that it was ready to be built on, therefore, he did not do soil compaction testing or further prepare the lot for building, though the concrete subcontractor was supposed to do some more compaction. He agreed that the soil under the slab was supposed to be compacted to 90% but he said that someone else did that. He stated that, after the second Corrective Work Order, the Complainant denied him access to the home, but he admitted receiving the Complainant’s Attorney’s letter stating that access would not be denied and he acknowledged that he did not respond to that letter. He stated that he is out of business and his license is suspended, but he tried to help the Complainant as much as he could. 8. According to the records of the Registrar of Contractors, the license in this matter has 1 open complaint against it. It is suspended for lack of bond. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3), (7), (23) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. The greater weight of the evidence established that the Complainant’s home is settling because the ground is not stable. Although a specific building code was not offered at hearing, the evidence established that failure to ensure that the ground is stable prior to building is a violation of this portion of the above statute. 4. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. In addition to not meeting code requirements, the Respondent’s failure to ensure that the home in this case was built on stable ground did not meet minimum workmanship standards and was a violation of this portion of the statute. 5. A.R.S. § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. The Complainant offered no evidence of fraud in this matter. Therefore, it was not established that the Respondent violated this portion of the statute. 6. A.R.S. § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. Respondent did not dispute or offer a legal justification for his failure to properly correct the issues brought to his attention in the two Corrective Work Orders in this matter. Therefore, it was established that the Respondent violated this portion of the above statute. 7. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. Respondent’s prior record would not justify any increase in the proposed disciplinary action in this matter. 8. In this case, the Complainant has established that Respondent violated A.R.S. § 32-1154(A)(2), (3), and (23) when it constructed a home that was not stable and settled at an unacceptable rate and to an unacceptable extent and when it failed to correct the matter after being issued a Corrective Work Order. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification. Done this day, January 27, 2010

/s/ Dorinda M. Lang 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