ALJDEC decisions subject to certification as final

09F-T0194-ROC · Registrar of Contractors · 2009-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2009; 1:30 p.m. APPEARANCES: Complainant Nociceptor, LLC was represented by Mr. Evan L. Thompson, Attorney-at-Law. Respondent Rio West Development and Construction, Inc. was represented by Mr. Russell B. Stowers, Attorney-at- Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Nociceptor, LLC is the owner of commercial real estate offices developed by Respondent Rio West Development and Construction, Inc. Respondent is a licensed Arizona contractor and holder of Class B-01 License number 105077. 2. Complainant filed this Complaint against Respondent in the Registrar of Contractors’ office alleging that the building constructed by Respondent was admitting water during rainfalls, and needed to be corrected. 3. The evidence proved that a Registrar of Contractors Inspector performed a job site inspection, but did not issue a written Corrective Work Order. Credible and substantial evidence proved that the Inspector did render his opinion as to the second-story exterior double-doors installed by Respondent, in that such doors cannot be expected to turn away all water during violent driving rains. Some rains according to the Inspector will come through those doors even when properly installed. 4. Further, the evidence proved that the first time Complainant raised the problem of the leaks with Respondent was one year after the Respondent had ceased work on the project. Respondent and complainant parted ways in 2007, and the first notice of problems with leaking was given to Respondent one year later in 2008. 5. However, the other substantial and credible evidence proved that the leaking problems are not merely at the double-doors and their thresholds, but at the ceiling areas and around the windows. Respondent’s evidence included testimony that it did practically all of the work on the roofing, but did not perform any perforations to the roof other than at the steel columns. 6. Respondent did not feel it was responsible to make further corrections to any work, and did not do so. 7. The greater weight of credible evidence, including the testimonial and photographic, proved that Respondent’s construction at the areas of the windows and ceiling was defective and admitted rainwater, and it is Respondent’s responsibility to correct these areas, and make restitution to Complainant for its expenses in cleaning up after the flooding that Respondent’s workmanship caused. 8. Besides the testimony by Complainant’s witness of his estimate of what corrections might cost, there is concrete credible and substantial evidence that Complainant’s have already paid $2,465.42 for professional water damage restoration 9. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.1, 7, 3 (namely, A.A.C. R4- 9-108, Workmanship Standards), and 13 (namely, A.R.S. § 32-1124.B).

3. There is insufficient evidence that Respondent abandoned the job. Rather the parties mutually agreed to terminate their relationship. There is no violation of A.R.S. § 32-1154.A.1. 4. Respondent’s workmanship on the windows and roof was below standards in violation of A.A.C. R4-19-108, and A.R.S. § 32- 1154.A.3. There does not appear to be any workmanship violation as to the doors. Registrar of Contractors Workmanship Standards allow for some infiltration of dust and moisture “during high winds and excessive rain.” Workmanship Standards for Licensed Contractors, February, 2009, p. 53. Also, those same standards hold a licensed contractor responsible for making adjustments once during the first year of occupancy. Although the Complainants occupied only the first floor and the second floor was empty, the occupancy requirement is still met. 5. Still, Respondent did violate A.R.S. § 32-1154.A.3 and A.A.C. R4-9- 108 by the poor workmanship of installing the doors and roof. 6. There is insufficient evidence in the record to conclude that Respondent violated A.R.S. § 32-1154.A.13 by violating A.R.S. § 32- 1124.B. 7. There is insufficient evidence to conclude that Respondent committed any wrongful or fraudulent act in violation of A.R.S. § 32-1154.A.7 independent of the other violations already concluded to have occurred. 8. A.R.S. § 32-1156.01 allows an Administrative Law Judge to order restitution to a party who is injured by the actions of a licensed contractor. RECOMMENDED ORDER In view of the forgoing Findings of Fact and Conclusions it is hereby recommended that Respondent’s Class B-01 License number 105077 be suspended until the Registrar receives written proof that Respondent has returned to the job site and properly corrected the leaking roof and windows, and made restitution to Complainant in the amount of $2,465.42. It is further recommended that in the event the Respondent provides the Registrar with written notice acceptable to the Registrar that it has performed the corrective action to the roof and windows and made the aforementioned restitution, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur and Citation and Complaint T09-0194 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, July 29, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com