ALJDEC decisions subject to certification as final

2010A-1130598-ROC · Registrar of Contractors · 2011-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 17, 2011 APPEARANCES: Chad and Cassie Scussel were represented by their attorney, Victoria L. Earle, Esq. E 7 Company, L.L.C., doing business as Elkins Builders and Associates, was represented by its attorney, Stephen C. Bergsten, Esq. 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. E 7 Company, L.L.C., doing business as Elkins Builders and Associates (“Respondent”), is the holder of License No. 260438, a Class KB-1 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Chad and Cassie Scussel (“Complainants”) entered into a written contract with Respondent dated March 1, 2008, for the construction of a residence located at 1084 S. Sunset Drive, Snowflake, Arizona. The close of escrow on the house was August 7, 2008. 3. Complainants filed a written Complaint with the Registrar alleging 13 items of deficient workmanship by Respondent in the construction of their residence. The complaint items are as follows: #1. The concrete slabs of the driveway is [sic] separated and lifted. 2. The concrete from the porch is separated from the house. 3. The stucco around all exterior windows is cracked. 4. The stucco at the base of garage and north end of porch is cracked. 5. The stucco patch on west side of home is a different shade then [sic] rest of house. 6. The fence all around property is unfinished[.] 7. The walls are cracked around multiple windows inside the home. 8. The east wall in the dining room is cracked horizontally. 9. The pantry in the kitchen is separated from the ceiling. 10. Multiple (4) doors in the home will not shut properly. 11. The vinyl flooring is buckled and separated from bathtub in main bathroom. 12. The vinyl flooring is separated from baseboard near door in kitchen. 13. The cupboard above kitchen sink is pulling away from the wall. 4. The Registrar originally designated the Complaint as Case No. P10- 0113, but later re-designated the Complaint as Case No. 2010-1130598. 5. In response to the filed Complaint, the Registrar’s assigned inspector, Tom Sandoval, performed a jobsite inspection on January 27, 2010, to view the complaint items. 6. After performing his jobsite inspection, Inspector Sandoval issued a Corrective Work Order dated January 29, 2010, that directed Respondent to timely perform remedial repair to each of the 13 complaint items. 7. On August 2, 2010, Complainants filed a second Complaint with the Registrar alleging the following additional five complaint items of deficient workmanship by Respondent: #1. The walls are cracked around multiple windows and doors inside the home. #2. Nail studs are breaking through the dry wall on ceiling and walls. #3. Three doors in the home will not close properly. #4. The concrete slabs of the driveway have separated and lifted. #5. Stucco around front window is cracked. 8. The Registrar issued a Citation and Complaint in Case No. 2010-1130598 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (23). 9. The Registrar forwarded Case No. 2010-1130598 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. On February 16, 2011, Inspector Sandoval performed a pre-hearing jobsite inspection. 11. Inspector Sandoval opined that the numerous problems with Complainants’ residence are attributable to settling and expansive soils. 12. There is credible evidence that there are expansive clay soils on Complainants’ property. Their house requires the installation of proper piers for stability. 13. Respondent failed to timely comply with the Registrar’s Corrective Work Order. Respondent resolved some of the complaint items. However, most of the complaint items remain unresolved despite Respondent having spent approximately $41,000.00 in remediation costs. 14. In January 2011, Respondent contacted Complainants to perform remedial work pursuant to an engineering report. Complainants denied Respondent access to perform such work because of the scheduled evidentiary hearing. In light of the fact that Respondent did not make such a request for almost a year from the issuance of the Corrective Work Order, Complainants’ denial of access due to the impending hearing was not unreasonable. 15. There is credible evidence that Complainants’ residence can be properly repaired, albeit at some expense.[1] However, the costs of those remedial repairs are not a factor to be considered. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 260438 shall be suspended on the effective date of the Order entered in Case No. 2010-1130598 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Corrective Work Order, and that it has properly repaired the five additional complaint items and any damage caused by its deficient workmanship. If Respondent properly accomplishes compliance with the Corrective Work Order and completes repairs and damage caused by its deficient workmanship on or before the effective date of the Order entered in Case No. 2010-1130598, and the Registrar approves proof of such compliance and completion of repairs, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 260438 shall be placed on active suspension for a period of three days, followed immediately by probation for a period of one year. This additional disciplinary penalty shall commence on the effective date of the Order entered in Case No. 2010-1130598 or the date the Registrar approves Respondent’s compliance with the terms of this Order, whichever is later. In addition to the above-provided penalties, 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. 2010-1130598 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 addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $9,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above-provided 24-month period and only if no claims are then pending. 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, March 9, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Witness Scott Van Horn of Van Horn Smith Construction testified that proper remedial repairs would cost approximately $80,000.00.

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