ALJDEC decisions subject to certification as final

09F-P0319-ROC · Registrar of Contractors · 2010-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2010 APPEARANCES: Burley T. O’Dell appeared personally and was represented by his attorney, John C. Mascari, Esq. Cedar Mountain Homes, L.L.C. did not appear. 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. Cedar Mountain Homes, L.L.C. (“Respondent”) is the holder of License No. 178002, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On August 10, 2006, Burley T. O’Dell (“Complainant”) and his wife, Margaret G. O’Dell, entered into a written agreement with Respondent for the construction of a residence located at 2051 S. Alpine Drive, Show Low, Arizona. 3. On May 18, 2009, Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent during the construction of their residence. The Registrar designated Complainant’s Complaint as Case No. P09-0319. 4. The Registrar issued a Citation and Complaint in Case No. P09-0319 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23), and (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. P09-0319 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. P09-0319, which advised the parties of the time, date, and location of the hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. 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. 8. Complainant paid Respondent the total contract price of $417,438.00. 9. In response to the filed Complaint, the Registrar’s assigned inspector, Tom Sandoval, performed a jobsite inspection to view Respondent’s alleged deficient workmanship. 10. As a result of the jobsite inspection, Inspector Sandoval issued a Corrective Work Order dated June 17, 2009, the terms of which are incorporated herein by reference. The written directive required Respondent to timely remediate the specified deficient workmanship. 11. On February 2, 2010, Inspector Sandoval performed an inspection of Complainant’s residence in preparation for the hearing. 12. At the hearing, Inspector Sandoval testified that the HardiePlank Lap Siding installed by Respondent was wavy on the right and left sides of the residence. Inspector Sandoval’s Corrective Work Order required Respondent to repair the siding, but Respondent did not comply with that directive. 13. Respondent is found to have failed to install the siding to the manufacturer’s specifications. As a result, the manufacturer will not warrant the installed product. 14. Inspector Sandoval testified that he inspected the flooring and cabinets, which he found acceptable. He did not inspect underneath the flooring to examine the support system. 15. With the exception of the interior flooring and cabinets, Respondent is found to have failed to comply with the Registrar’s Corrective Work Order. 16. Respondent’s deviation from the manufacturer’s specifications for the installation of the siding and its failure to comply with the Registrar’s written directive to perform remedial work to its deficient workmanship are wrongful acts resulting in substantial injury to Complainant. 17. Respondent’s License No. 178002 was cancelled on October 7, 2009. As a result of that cancellation, Respondent may not perform or contract to perform the remaining work required to be remedied as specified in the Corrective Work Order. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the cancellation of Respondent’s contracting license does not deprive the Registrar of authority to impose disciplinary action against the license for proven statutory and regulatory violations in this matter. 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (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. 178002 shall be revoked on the effective date of the Order entered in Case No. P09-0319. In addition to the above-provided license revocation, 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. P09-0319 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, February 23, 2010.

/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