ALJDEC decisions subject to certification as final

2010A-1502347-ROC · Registrar of Contractors · 2010-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 2010 APPEARANCES: Pollyanna Sorensen appeared personally. Edtor Home Building, L.L.C., doing business as Edjay Construction, was represented by its authorized representative, Ed Torterello. 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. Edtor Home Building, L.L.C., doing business as Edjay Construction (“Respondent”), is the holder of License No. 196936, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 29, 2009, Pollyanna Sorensen (“Complainant”) filed a written Complaint with the Registrar alleging 26 items of deficient workmanship by Respondent on a project at Complainant’s residence located at N. 967 Rio Verde E., Cottonwood, Arizona. The Complaint items contained in the Complaint are incorporated herein by reference. 3. The Registrar initially designated Complainant’s Complaint as Case No. A10-0150, but later re-designated it as Case No. 2010-1502347. 4. The Registrar issued a Citation and Complaint in Case No. 2010-1502347 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (1), (2), (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2010-1502347 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On December 8, 2008, the parties entered into a written agreement for the following remodeling work to be performed: framing; interior paint; deck and siding; and flooring. 7. Respondent contracted to install TimberTech® Deck/Railing systems at Complainant’s residence. 8. Respondent was the second contactor hired by Complainant for the remodeling project. 9. In response to the filed Complaint, the Registrar’s assigned inspector, John Prince, performed a jobsite inspection at Complainant’s residence to view the 26 items of alleged deficient workmanship by Respondent. 10. On January 14, 2010, Inspector Prince issued a Corrective Work Order, the terms of which are incorporated herein by reference. 11. The Corrective Work Order required Respondent to timely perform remedial work to the following Complaint items: 1 though 10, 13 through 15, and 17 though 26. 12. Based upon statements made by Complainant, Inspector Prince determined that Respondent was not responsible for performing any remedial action to the following Complaint items: 11, 12, 27, and 28. 13. Complainant withdrew Complaint item 16 at the jobsite inspection. 14. Respondent failed to comply with the Corrective Work Order. 15. Respondent’s response to the Corrective Work Order was suggesting to Complainant that she hire another contractor to complete the work. Respondent is determined to have abandoned Complainant’s project without legal justification. 16. Respondent deviated from the TimberTech® Deck/Railing product installation specifications in the construction of the deck and railing systems. Brackets were missing from rails or improperly installed above rails instead of below the rails for necessary support. Balusters for the railing systems were not properly installed per the manufacturer’s specifications, resulting in a significant number of balusters becoming loose thereby weakening the railing systems. 17. On June 29, 2010, the United States Bankruptcy Court, District of Arizona, issued a Discharge of Debtor for “Edward R. Tortorello fdba Edtor Homes LLC, fdba Edjay Construction” and “Jacqueline S. Tortorello.” Edward R. Tortorello is Respondent’s member and qualifying party. Jacqueline S. Tortorello is Respondent’s other member. Complainant and the Registrar were named creditors in the bankruptcy action. 18. The above-described bankruptcy action does not affect the Registrar’s exercise of its police powers against Respondent for any statutory and/or regulatory violations by Respondent in this matter. 19. Complainant has had the required remedial work performed by another contractor at her added expense. 20. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 196936 was suspended by operation of law for lack of bond on January 14, 2010. In addition, it appears that Respondent’s contracting license expired on July 1, 2010. 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 expiration and suspension of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and regulatory violations in this matter. 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (2), (3), namely A.A.C. R4-9-108, and (23). The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 196936 shall be revoked on the effective date of the Order entered in Case No. 2010-1502347. 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. 2010-1502347 shall result in the automatic revocation of Respondent’s License No. 196936, 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), 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, August 17, 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