ALJDEC decisions subject to certification as final

2009A-760823-ROC · Registrar of Contractors · 2011-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 18, 2011, at 8:00 a.m. APPEARANCES: Complainant Melissa Gallemore appeared on her own behalf; Respondent C B E Development, L.L.C. appeared through Cory Blaine Ethington, its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In May 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC207425, Class KB-2 for dual residential and small commercial contracting to C B E Development, L.L.C. (“Respondent”). On or about August 9, 2007, Respondent contracted with Melissa Gallemore (“Complainant”) to perform certain construction and landscaping work at Complainant’s residence at 7555 West County 9th Street, Yuma, Arizona. On October 23, 2008, the Registrar received Complainant’s complaint regarding certain aspects of Respondent’s performance of its contract. The Registrar designated Complainant’s complaint as Case No. Y09-0076. The Registrar’s inspector, Daryl McCloskey, performed a jobsite inspection in Case No. Y09-0076, and on November 6, 2008, issued a Corrective Work Order (“CWO”) to Respondent, requiring it within twenty calendar days to correct by appropriate means the following items: 1) The leaking from the spa. 2) The pool cleaning system. 3) The water flow from the spa to the pool. 4) The discolor [sic] of the plaster in the pool. 5) The deteriorated concrete fence footing around the pool. 6) The east and west patio wooden shades that are unstable. 7) Complete the tree trimming on the property. 8) The roof leak in the front entry area. 9) The cracked pool deck.

Complainant requested a hearing. On April 28, 2009, the Registrar issued a Citation and Complaint in Case No. Y09-0076, charging Respondent with violations of A.R.S. § 32-1154(A)(1),[1] former (7),[2] (23),[3] (3), namely A.A.C. R4-9-108,[4] and (13), namely A.R.S. § 32-1158.[5] Respondent did not file a timely written answer to the Citation and Complaint. Therefore, on August 24, 2009, the Registrar issued a Decision and Order in Case No. Y09-0076, finding that by failing to file a timely written answer, under A.R.S. § 32-1155(B) Respondent admitted the charges contained in the Citation and Complaint. As a result of Respondent’s admitted violations, the Registrar required Respondent to pay a $250.00 civil penalty and to submit “proof that Respondent properly corrected the items involved and detailed in the Complaint and the Agency’s Corrective Work Order.” The Registrar’s Decision and Order had an effective date of October 3, 2009. On or about September 24, 2009, the Registrar received Respondent’s check for the civil penalty imposed in Case No. Y09-0076. On October 27, 2009, the Registrar suspended Respondent’s license as a result of its failure to provide the remaining written proof that the Registrar’s Decision and Order in Case No. Y09-0076 required it to provide. Subsequently, the parties submitted conflicting claims to the Registrar about whether Respondent had complied with the remainder of the Registrar’s Decision and Order in Case No. Y09-0076. The Registrar subsequently redesignated Case No. Y09-0076 as Case No. 2009-760823. On February 4, 2011, the Registrar issued an Order Setting Compliance Hearing in Case No. 2009-760823, providing in relevant part as follows: On or about November 19, 2009, Respondent submitted a copy of written correspondence with the Registrar that it had sent to Complainant via Certified U.S. Mail maintaining, among other things, that “I am trying to get this corrective work order complete…your response would be greatly appreciated.”

On or about December 8, 2009, Respondent submitted written correspondence with the Registrar requesting a Compliance Inspection providing that all of the items had been addressed. The Registrar treated this as a Request for Compliance Inspection and Notice of Compliance.

On or about January 6, 2010, Counsel for Complainant submitted a Response in Objection to Respondent’s Request for Compliance Inspection and Notice of Compliance.

In view of the foregoing, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Yuma area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has fully complied with the terms set forth in the Registrar’s August 24, 2009 Order, absent unreasonable interference or denial of access by Complainant.

(Emphasis in original.) The Registrar referred Case No. 2009-760823 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issue of whether Respondent complied with the Registrar’s Decision and Order in former Case No. Y09-0076. On May 18, 2011, a compliance hearing was held in Case No. 2009-760823 via videoconference from the Registrar’s Yuma office. Inspector McCloskey testified. Complainant testified on her own behalf and submitted fifteen exhibits. Respondent’s qualifying party and managing member, Cory Ethington, testified. Hearing Evidence Inspector McCloskey performed a compliance inspection on May 13, 2011, with both parties present. Inspector McCloskey testified that CWO Item Nos. 1, 2, 3, 4, and 9 had been corrected and that Complainant indicated that she was happy with the corrections. Complainant submitted documents evidencing her complaint to the Registrar against Respondent’s subcontractor, Milan Pools and Spas, L.L.C., License No. ROC223977, Class KA-5 for dual swimming pool contracting (“Milan”), in Case No. Y09-0077. These documents included the November 6, 2008 CWO in Case No. Y09-0077 that required Milan to correct Item Nos. 1, 2, 3, 4, and that the CWO in Case No. Y09-0076 also required Respondent to correct. With respect to CWO Item No. 5, Inspector McCloskey testified that the fence on the northeast and east side of the pool was still deteriorated and required correction, and that Complainant had repaired part of the fence on the north side of the pool to keep her dogs in the yard. With respect to CWO Item No. 6, Inspector McCloskey testified that some repairs had been done to the wooden shades on the east and west sides of the patio, but that the shades were still unstable. Mr. Ethington testified that Respondent followed the blueprints for the shades, the shades passed the county’s inspection, and Complainant approved the shades. Inspector McCloskey acknowledged that Respondent may have constructed the shades according to plan and that the shades may have passed the local building authority’s inspection. Inspector McCloskey explained that if the shades were not engineered to provide enough stability to comply with the Registrar’s workmanship standards, the Registrar would require that the Respondent repair the shades so that they were safe. Inspector McCloskey also testified that the Registrar’s workmanship standards could differ from code requirements. Inspector McCloskey testified that Complainant added lattice on the top of the shades to increase stability. Inspector McCloskey testified that protruding bolts that were used to attach the lattice to the shades presented a safety hazard. With respect to CWO Item No. 7, Inspector McCloskey testified that he performed the first jobsite inspection on November 3, 2008, more that 2½ years before he performed the compliance inspection, and that the passage of time since he issued the CWO made it impossible to determine whether the trees at Complainant’s property had been trimmed. Mr. Ethington testified that Respondent trimmed and took out additional trees to comply with the CWO and for insurance purposes. With respect to CWO Item No. 8, Inspector McCloskey testified that Complainant told him that she repaired the roof leak in the front entry area and also replaced the flooring that the leak had damaged. According to the Registrar’s electronic record, Respondent’s license was suspended by operation of law for lack of bond between January 2, 2009, and October 22, 2009. Complainant testified that after Respondent’s license was suspended for lack of bond, she discussed with Mr. Ethington the possibility of Respondent hiring an appropriately licensed contractor to perform repairs to comply with the CWO, but that “nothing happened.” Mr. Ethington acknowledged that in April 2009, he moved to Oregon to become a farmer, but testified that Respondent “still had people in Yuma working on the project.” Complainant testified that Respondent did not perform any repairs to comply with the CWO and that she hired contractors to perform all the repairs that Inspector McCloskey observed at the compliance inspection. Complainant did not provide any evidence that anyone other than Respondent or Milan performed the repairs to CWO Item Nos. 1, 2, 3, 4, and that Inspector McCloskey testified were evident and that she accepted at his March 13, 2011 compliance inspection. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[6] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s final order in former Case No. Y09-0076 or that Complainant failed to provide reasonable access for it to do so.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] Respondent did not obtain a rehearing on or appeal the Registrar’s Decision and Order in former Case No. Y09-0076 that required Respondent to correct the patio shades near Complainant’s pool. Respondent cannot challenge in this compliance hearing the Registrar’s determination in the underlying case that the patio shades required correction to meet the Registrar’s workmanship standards. It is therefore irrelevant whether the shades were built to plan or passed the County’s inspection. Respondent established that either it, in former Case No. Y09-0076,or its subcontractor Milan, in Case No. Y09-0077, complied with the CWO with respect to CWO Item Nos. 1, 2, 3, 4, and 9. Respondent did not establish that it complied with the CWO with respect to CWO Item Nos. 5, 6, 7, and 8. 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 affirm the disciplinary suspension of Respondent C B E Development, L.L.C.’s License No. 207425, Class KB-2 that the Registrar previously imposed in former Case No. Y09-0076. 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 2, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1154(A)(7) formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [3] A.R.S. § 32-1154(A)(23) 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.” [4] A.R.S. § 32-1154(A)(3) 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.” [5] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1158 requires that licensed contractors include certain terms in their contracts with property owners. [6] See 32-1101 et seq. [7] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826