ALJDEC decisions subject to certification as final

2010A-15371195-ROC · Registrar of Contractors · 2010-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 31, 2010 APPEARANCES: Lisa Corcoran appeared personally. Stadler Custom Homes, L.L.C. 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. Stadler Custom Homes, L.L.C. (“Respondent”) is the holder of License No. 192799, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On October 22, 2009, Lisa Corcoran (“Complainant”) filed a written Complaint with the Registrar alleging five items of deficient workmanship by Respondent at Complainant’s family residence located at 7450 S. Beach Blvd., Queen Creek, Arizona. 3. The Registrar initially designated Complainant’s Complaint as Case No. 10-1537, but later re-designated it as Case No. 2010-15371195. 4. The Registrar issued a Citation and Complaint in Case No. 2010- 15371195 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32- 1124(B), and (23). 5. The Registrar forwarded Case No. 2010-15371195 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2010-15371195, 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. 7. Respondent failed to appear at the scheduled hearing.[1] The Administrative Law Judge conducted the hearing in Respondent’s absence. 8. In March 2006, Complainant entered into a contract with Respondent for the construction of a residence. 9. In response to Complainant’s filed Complaint, the Registrar’s assigned inspector, Geoff Galgan, performed a jobsite inspection at Complainant’s residence to view the Complaint items on November 12, 2009. 10. As a result of the jobsite inspection, Inspector Galgan issued a Corrective Work Order dated November 25, 2009, which addressed each of the Complaint items. 11. Inspector Galgan opined that Complaint items 1, 2, 3, and 6 were outside the Registrar’s 2-year jurisdiction against Respondent.[2] 12. The Corrective Work Order required Respondent to timely perform remedial repairs to Complaint item 4, which read: “Fire pit stucco in back yard pealing [sic].” 13. Complainant agreed to a delay in Respondent’s time to comply with the Corrective Work Order. However, in July 2010, Respondent contacted Complainant to perform the required remedial repairs. Complainant requested that Respondent wait until she returned to Arizona from California before performing the repairs. Instead of waiting for Complainant’s return to Arizona, Respondent trespassed upon Complainant’s property without notice or permission and performed work on the fire pit. 14. On August 26, 2010, Inspector Galgan performed a pre-hearing jobsite inspection to determine Respondent’s compliance with the Corrective Work Order. 15. At hearing, Inspector Galgan credibly testified that Respondent failed to complete the required remedial work to Complainant’s fire pit. Inspector Galgan noted that the new stucco was not painted. The inspector observed numerous areas of excessive cracking of the new stucco during his pre-hearing inspection. 16. Respondent is determined to have failed to comply with the Registrar’s Corrective Work Order by failing to perform remedial repairs to the fire pit in a workmanlike manner. 17. Complainant failed to address the allegation that Respondent failed to properly display its contracting license number with the prefix, “ROC,” at the hearing. 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), 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). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to present any evidence at the hearing in support of this charged violation. RECOMMENDED ORDER Respondent’s License No. 192799 shall be suspended on the effective date of the Order entered in Case No. 2010-15371195 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Corrective Work Order in a workmanlike manner. If Respondent fully complies with the Corrective Work Order in a workmanlike manner on or before the effective date of the Order entered in Case No. 2010-15371195, and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s contracting license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in Case No. 2010-15371195 or the date on which the Registrar approves proof of Respondent’s compliance with the Corrective Work Order in a workmanlike manner, 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. 2010-15371195 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, September 20, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Shortly before the convening of the scheduled hearing, the Office of Administrative Hearings received a telephone call from Dean Stadler, Respondent’s member and qualifying party. Mr. Stadler stated that he was out of state on business and would not attend the hearing. Mr. Stadler did not remain on the telephone in order to appear telephonically at the hearing. [2] Complaint item 5 was manually deleted in the Complaint.

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