ALJDEC decisions subject to certification as final

2010A-207995-ROC · Registrar of Contractors · 2011-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 29, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through their attorney, Joe O’Connor. The Respondent appeared through its attorney, S. C. Bergsten. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B-3 (No. 219681) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling and addition work on the Complainants’ residence. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to their satisfaction despite their repeated demands that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated demands the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 7. On October 9, 2009, the Complainants filed their first request to amend their complaint. 8. On October 27, 2009, the Complainants filed their second request to amend their complaint. 9. On December 30, 2009, the Complainants filed their third request to amend their complaint. 10. On April 29, 2010, the Complainants filed their fourth request to amend their complaint. 11. On November 8, 2010, the Registrar of Contractors issued a Notice of Amendment wherein the Registrar accepted the four amendments and incorporated the contents of the amendments into the original complaint. 12. All of the identifiable items set forth in the Amended Complaint were addressed during the hearing. 13. Credible testimony and evidence established that the following items set forth in the Amended Complaint, that were not previously addressed in the Corrective Work Order, fail to comply with applicable workmanship and industry standards and require appropriate corrective action. A. The window in the commode room is not centered. The location of the window shall be properly corrected. B. The roof overhang at the peak of the roof is soft and sagging. The roof overhang shall be properly corrected. C. There is a bulge or ripple on the outside wall of the new bathroom. The bulge or ripple shall be properly corrected. D. There is an unacceptable gap between the old roof and the new roof. The gap between the two roofs shall be properly corrected.

E. The main electric lines are located in a roof valley. The location of the main electric lines shall be properly corrected.

F. A seam in the interior drywall is visible beyond applicable workmanship and industry standards. The seam in the interior drywall shall be properly corrected. G. Drywall screws were used in the installation of the shower enclosure. The drywall screws shall be properly removed and replaced with the manufacturer’s specified construction material.

H. The new roof leaks. The leaking roof shall be properly corrected. I. Water penetration is occurring through the floor and walls of the master bedroom addition. The water penetration through the floor and walls of the new addition shall be properly corrected.

J. The water penetration through the floor and wall of the master bedroom addition has caused water damage, including mold, in the surrounding areas. The water damage, including mold, shall be properly corrected. K. The fiberglass master shower was not installed in accordance with the manufacturer’s recommendations and fails to comply with applicable workmanship and industry standards and mold exists behind the shower installation. The installation of the shower and all water damage and mold caused by the improperly installed shower shall be properly corrected. L. The construction of the crawl space ventilation under the new addition fails to comply with applicable code requirements, workmanship and industry standards. The crawl space ventilation shall be properly corrected. M. The grading around the new addition fails to comply with applicable code requirements and workmanship and industry standards. The grading around the new addition shall be properly corrected. N. The vapor barrier under the addition is broken and not properly sealed. The vapor barrier shall be properly corrected.

O. The plumbing under the addition is not properly secured in violation of code requirements and applicable workmanship and industry standards. The plumbing under the addition shall be properly corrected. P. There is excessive defection in the roof and valley pan area where the old roof and new roof join. The excessive deflection shall be properly corrected. 14. The remaining items of the Amended Complaint were either shown to have already been addressed in the Corrective Work Order or were insufficiently proven to be in violation of plans and specifications, applicable workmanship and industry standards, or applicable code requirements. 15. Credible testimony and evidence established that during the course of construction and the filing of the Amended Complaint the parties have developed an adversarial personal relationship and that any further unsupervised personal contact between the parties would have a strong possibility of involving local law enforcement and should not be encouraged. 16. Although the Registrar of Contractors often allows a contractor an additional opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause properly licensed contractors of the Respondent’s choice to fully comply with the terms of the Corrective Work Order and o properly correct the enumerated items of the Amended Complaint set forth above in Finding of Fact No. 13 (A) through 13 (P). 17. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications or any building code), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in professional and workmanlike manner).

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused properly licensed contractors of the Respondent’s choice to fully comply with the terms of the written Corrective Work Order and to fully correct the designated items of Amended Complaint set forth above in Finding of Fact No. 13 (A) through (P). It is further recommended that if the Respondent causes properly licensed contractors of the Respondent’s choice to fully accomplish the above described corrective actions, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, April 7, 2011.

/s/ M. Douglas 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