ALJDEC decisions subject to certification as final

2008A-2366438-ROC-com · Registrar of Contractors · 2011-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: January 4, 2011 at 8:00 a.m. APPEARANCES: Complainant Janeth Ojeda did not appear; Respondent Javier Ahumada Piña, dba Enterprise Development, appeared through Justin D. Castillo, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In July 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC186869, Class B for residential general contracting to Respondent Javier Ahumada Piña, doing business as (“dba”) Enterprise Development. Complainant Janeth Ojeda purchased a new residence that Respondent had constructed in Rio Rico, Arizona. Complainant subsequently made a complaint to the Registrar against Respondent about cracked floor tiles and other workmanship issues related to the settling of the residence. Respondent did not resolve Complainant’s complaint to her satisfaction, Complainant requested a hearing, and the Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. On July 9, 2009, an administrative hearing was held in Case No. S08-0236 before Administrative Law Judge (“ALJ”) M. Douglas. ALJ Douglas issued a decision finding that Respondent had not performed its work on the residence in a professional and workmanlike manner, in violation of A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108).[1] Nonetheless, ALJ Douglas found that Respondent had not violated A.R.S. § 32- 1154(A)(23)[2] by failing to comply with the Registrar’s Corrective Work Order (“CWO”) because Respondent had attempted to perform corrective work, but Complainant had refused to provide reasonable access based on her disagreement with Respondent’s chosen method of correction. ALJ Douglas also found in relevant part as follows: 10. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of corrective work. Instead the decision as to the method of corrective work is left up to the licensed contractor which makes such a decision at his peril. The selected method of corrective work must bring the Respondent’s defective work to within applicable workmanship and industry standards.

11. Although the Complainant[’s] concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of her new home are understandable, construction work, such as that at issue herein, is not a perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to complete necessary remedial work.

[Emphasis in original.] Finally, because ALJ Douglas found that Complainant’s refusal to provide reasonable access for Respondent to comply with the CWO “may have been due to the Complainant’s asserted limited English language abilities,” he gave Complainant “one, final, opportunity to accept corrective action from the Respondent and his subcontractors.” On August 20, 2009, the Registrar substantially accepted ALJ Douglas’ recommended decision, and ordered that Respondent perform the repairs that the CWO required as a condition of avoiding suspension of his license. The Registrar’s order concluded with the following notice: The Complainant is advised that any unreasonable denial of access to the Respondent or the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complainant may be denied access to the Residential Contractors’ Recovery Fund, even if otherwise eligible.

[Emphasis in original.] The Registrar redesignated Case No. S08-0236 as Case No. 2008-2366438. Subsequently, the Registrar received Respondent’s petition for rehearing based on Complainant’s alleged continued refusal to provide reasonable access for Respondent to comply with the CWO, and Complainant’s request for a compliance inspection based on Respondent’s alleged failure to comply with the CWO. On October 26, 2010, the Registrar issued an order denying Respondent’s petition for rehearing, but setting a compliance hearing in Case No. 2008-2366438 in the expedited course of docketing. The Registrar again referred the matter to OAH and on October 29, 2010, issued a Notice of Compliance Hearing, setting a compliance hearing on January 4, 2011, at OAH’s office in Phoenix, Arizona. The Registrar sent a copy of the Notice of Compliance Hearing to Complainant at her address of record, which was her residential address in Rio Rico. A compliance hearing was held on January 4, 2011. The ALJ requested that OAH staff be prepared to procure an interpreter for Complainant. Respondent appeared through his attorney, testified on his own behalf, and submitted two exhibits. Although the beginning of the compliance hearing was delayed thirty minutes to allow Complainant additional travel time, she did not appear, personally or through an attorney, and did not contact OAH to request a continuance or that the start of the hearing be further delayed. Complainant did not present any evidence to counter Respondent’s evidence. Additional Hearing Evidence After Respondent received the Registrar’s final order in Case No. S08- 0236, his attorney contacted Complainant to arrange a date on which Respondent could inspect her residence and determine the materials he needed to perform repairs. Respondent inspected Complainant’s residence on September 2, 2009. Before Respondent left Complainant’s residence, the parties agreed that he would return on September 4, 2009, to perform repairs. After Respondent inspected Complainant’s residence, he purchased tiles at The Floor Trader in Tucson, Arizona to replace the tiles that were cracked or chipped or hollow-sounding, and purchased grout and other necessary supplies for repairs at Home Depot. Respondent also contracted with Garcia and Son’s Concrete, L.L.C., License No. ROC239436, Class K-9 for dual concrete (“Garcia and Son”), to repair the concrete at Complainant’s residence after Respondent removed the damaged tiles. On September 4, 2009, at approximately 11:30 a.m., Respondent and his employee, Raoul Esparsa, arrived at Complainant’s house to begin performing repairs. Respondent expected that he would have to remove between 28 and tiles and that the removal would take until 4:00 or 5:00 p.m. Respondent told Complainant that Gilberto Garcia, of Garcia and Son, would begin repairs to the concrete one hour after Respondent removed the tiles, and that if Respondent finished tile removal late in the day, Gilbert and Son would arrive the next morning to repair the concrete. Mr. Esparsa started removing a tile by striking it with a hammer to break it into fragments that could be chipped off the concrete substrate. Complainant stood about 1’ or 2’ away, taking pictures of Respondent’s work with a camera. Respondent testified that because broken tiles are “like glass,” he asked Complainant to stand back a few feet for her own safety. Respondent told Complainant that she could watch the demolition from the living room and after the tiles were removed, could take close-up photographs of the concrete and remaining tile. Complainant refused to move, saying, “This is my house and I can stand where I want.” When Mr. Esparsa left the area to get materials, Complainant attempted to insert a credit card in the hairline cracks in the concrete under the tile that Mr. Esparsa had removed. Respondent again told Complainant that he was asking her step back for her own safety and that she was putting him in a “bad position” because he would be liable if she was hurt. Mr. Esparsa returned to remove a second piece of tile. Complainant again moved within 1’ or 2’ to take photographs of his work and when Respondent asked her to stand back, she again refused. Mr. Esparsa told Respondent, “I’m very nervous that I will hurt Mrs. Ojeda or myself. I cannot work like this. Tell Mrs. Ojeda to go to the living room or I’ll leave.” When Respondent again asked Complainant to stand back, Complainant again said, “This is my house and I can stand wherever I want,” or words to that effect. After Complainant continued to refuse to stand back, Mr. Esparsa and Respondent left. They had been working at Complainant’s residence for 30 or 45 minutes. Thirty-five minutes after Respondent left, he received a telephone call from a deputy at the Santa Cruz County Sheriff’s Office, where Complainant is employed. The deputy identified himself and told Respondent that he must return to Complainant’s house to complete the work required by the “court order.” After Respondent told the deputy that he would need to consult his attorney, the deputy said that if the dispute was a civil matter, the Sheriff’s Department would not be involved. Respondent had no further communications with Complainant. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] The Notice of Compliance Hearing that the Registrar mailed to Complainant at her address of record was reasonable, and she is deemed to have received the Notice of Compliance Hearing.[4] Respondent bears the burden of proof to establish that he either complied with the Registrar’s final order in this matter or that Complainant failed to provide reasonable access for him to do so.[5] Respondent established that Complainant refused to provide reasonable access for him to comply with the Registrar’s final order in this matter. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complaint No. 2008-2366438 against License No. ROC186869, Class B, previously issued to Respondent Javier Ahumada Piña, dba Enterprise Development. 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, January 11, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 a written directive from the registrar.” [3] See 32-1101 et seq. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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