ALJDEC decisions subject to certification as final

2009A-56382694-ROC · Registrar of Contractors · 2010-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2010 APPEARANCES: Silvia Stokes appeared personally. Capital Pacific Homes of Arizona, Inc. 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. Capital Pacific Homes of Arizona, Inc. (“Respondent”) is the holder of License No. 113321, a Class B- contracting license issued by the Registrar of Contractors. 2. On April 27, 2009, Silvia Stokes (“Complainant”) filed a written Complaint with the Registrar alleging workmanship deficiencies by Respondent in the construction of her residence located at 18673 E. Braeburn Lane, Queen Creek, Arizona. The Registrar designated the Complaint as Case No. 09-5638. The Registrar later re-designated the Complaint as Case No. 2009-56382694. 3. On May 29, 2009, the Registrar’s assigned inspector, Geoff Galgan, performed a jobsite inspection to view the alleged deficient workmanship specified in the Complaint. As a result of that inspection, Inspector Galgan issued a Corrective Work Order dated June 9, 2009 (“CWO”), which directed Respondent to timely perform remedial repairs to specified Complaint items and listed specified Complaint items that were not Respondent’s responsibility to remediate. 4. On November 6, 2009, Complainant filed an addendum to her Complaint (“Addendum Complaint”) alleging additional Complaint items. 5. On December 10, 2009, Inspector Galgan conducted a second jobsite inspection at Complainant’s residence to view the Addendum Complaint items. As a result of that second inspection, Inspector Galgan issued a Corrective Work Order dated December 11, 2009 (“Addendum CWO”), which was an addendum to the original CWO. The Addendum CWO required Respondent to timely perform remedial repairs to two Addendum Complaint items and absolved Respondent of any responsibility to perform remedial work to four other items. 6. The Registrar issued a Citation and Complaint in Case No. 2009- 56382694 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (2), (23), and (3), namely A.A.C. R4-9-108. 7. The Registrar forwarded Case No. 2009-56382694 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing in Case No. 2009-56382694, which advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 9. The commencement of the 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. 10. Inspector Galga testified that the exterior paint repairs performed by Respondent do not match the existing paint. Respondent failed to comply with the Registrar’s written directive to correct this deficiency by appropriate means. 11. Inspector Galgan also testified that the concrete decorative curbing in Complainant’s front yard is two different colors. Respondent failed to comply with the Registrar’s written directive to correct this deficiency by appropriate means. 12. The landscaping was not completed between Complainant’s sidewalk and the curb. Respondent placed granite at the front of Complainant’s residence but not on the side of the property. No trees were planted by Respondent per plans or specifications. 13. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 113321 was voluntarily cancelled. 14. Respondent is found to have abandoned Complainant’s project as evidenced by its failure to construct Complainant’s house in a workmanlike manner, its failure to comply with plans or specifications to plant the required trees, its failure to comply with the Registrar’s written directives to remediate Respondent’s deficient workmanship, and its failure to appear at the hearing. 15. Any allegation contained in the Complaint and Amended Complaint not addressed in the above Findings of Fact is determined to meet workmanship standards since Complainant only addressed the above- described three issues. 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 voluntary cancellation of Respondent’s License No. 113321 does not deprive the Registrar of the authority to impose disciplinary action upon that license for proven statutory and/or regulatory violations in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (2), (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. 113321 shall be revoked on the effective date of the Order entered in Case No. 2009-56382694. 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. 2009-56382694 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, June 14, 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