ALJDEC decisions subject to certification as final

10F-S0026-ROC · Registrar of Contractors · 2010-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2010 APPEARANCES: The Complainant appeared in his own behalf. The Respondent appeared in his own behalf. ADMINISTRATIVE LAW JUDGE: Allen Reed ____________________________________________________________________ Findings of Fact 1. In August of 2006, the Complainant contracted with the Respondent for the purchase of land and the construction of a residence in Rio Rico, Arizona. The contract price was $137,835.00. 2. The Respondent constructed the home using aerated autoclaved block which according to the Respondent has better insulation properties than traditional block. 3. During the course of construction, the block supplier went out of business and the Respondent had to obtain similar block from another source. 4. The Complainant testified that he observed numerous gaps at block joints and informed the Respondent of his concerns. The Complainant claimed the Respondent gave assurances the gaps would be filled during construction. 5. The Complainant received a Certificate of Occupancy in September of 2007. 6. Over the next 22 months, the Complainant became concerned about a number of construction related items and voiced them to the Respondent who made some effort to address the Complainant’s concerns. 7. The Respondent’s efforts were not satisfactory to the Complainant and on August 3, 2009, the Complainant filed a Complaint with the Registrar of Contractors (ROC). 8. The Complainant listed 51 items that the Complainant considered to be problems. 9. On September 17, 2009, ROC Inspector Mike Nieves (Nieves) performed a jobsite inspection with the parties in attendance. 10. On September 18, 2009, Nieves issued a Corrective Work Order (CWO) that required the Respondent to perform corrective work on approximately 29 of the 52 items. [1] 11. The Respondent testified he was at the Complainant’s home up to 12 times and made numerous efforts to correct the various problems. However, he did not complete the work because he had problems contacting and scheduling times with the Complainant. Nieves testified the Complainant had said he did not want the Respondent to perform additional work at his home. 12. On April 22, 2010, Nieves performed a prehearing jobsite inspection. 13. Nieves testified by telephone. Two additional items had been corrected. According to Nieves, the following items still require some type of correction: a. The living room window frame is not solidly placed (hollow sound); b. Living room drywall cracks that have reappeared; c. Living room trim around door, casing, and wall needs caulking; d. Living room light switch is not functioning; e. Kitchen window frame is not solid (hollow sound) f. Kitchen outlet needs to be completed; g. Bedroom (#1) window frame is not solid (hollow sound); h. Repaired bedroom ceiling crack needs matching paint; i. Bedroom (#2) window frame is not solid (hollow sound); j. Master bedroom plaster cracks; k. Uneven master bedroom wall (floor to ceiling) ; l. Kitchen cabinets missing toe kick; m. Hallway east and west walls are uneven; n. Boiler room door is missing; o. Dryer exhaust vent is too short; p. Garage drywall cracks; q. Bedroom (#1) closet drywall (plaster) cracks; r. Bathroom wall is not straight; s. Birdblocks have holes (wire is outside); t. Multiple stucco cracks around the house reappeared and stair step block wall cracks; u. Small gaps in stucco (not finished) at birdblocks; v. Block wall stair step (see “t” above); w. Inconsistent stucco texture in area of e prior repairs and between house and carport; x. Master bedroom window frame is bent (hinders opening and closing); y. Interior portion of the air conditioning system has gaps around duct opening in mechanical room ceiling; z. Hollow areas in exterior stucco (approximately five areas). Items 13 (k), (r), and (s), lack a sufficient evidentiary foundation to establish a violation. However, the remaining items are found to require correction as testified to by Nieves. Conclusions of Law The allegations of the Citation and Complaint concern A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108, relating to workmanship standards; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The evidence establishes the violation of (A)(3)/A.A.C. R4-9-108 as charged. The number of items which according to Nieves require correction and the items which failed after initial attempts to correct, sustain the allegation. 5. The evidence does not establish a clear violation of (A)(23) in light of what appears to have been an inability of the parties to cooperate with respect to scheduling the corrective work and the Complainant’s expressed desire that the Respondent not perform the remaining work. 6. According to the evidence, the Respondent had corrected some items which continued to fail. Continued failure of any corrections required by the final Order in this case will potentially subject the Respondent to further discipline. The Respondent is expected to perform any required corrective work in good faith, effectively, efficiently, in a timely manner, and with due consideration of the Complainant’s availability when it is necessary that the Complainant is present to in order to accomplish the corrective work. 7. The Complainant is also held to a standard of reasonableness and good faith in providing necessary access to the Respondent in order to perform any required corrective work. Recommended Order Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Respondent J L Construction’s Class B- license (No. 143859) shall be suspended until the ROC receives written proof that the Respondent has performed appropriate corrective work as specified in paragraph 13 of the Findings of Fact. If the ROC receives written proof that the Respondent has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and this matter shall be closed. 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, May 4, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A 52nd item was added by the Complainant but Nieves did not require any action on this item by the Respondent.

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