ALJDEC decisions subject to certification as final

2010A-26962200-ROC · Registrar of Contractors · 2011-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2011

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Managing Member and Qualifying Party Dennis Lurvey.

WITNESSES: Mark Alyea, ROC Inspector Steve Gallant, Scottsdale Building Inspector Barbara Desmond Dennis Lurvey L. Jeanne Petit

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants, who are mother and daughter, bring this action against Respondent alleging poor workmanship. Respondent denies the allegations. At the start of the hearing, Complainants acknowledged that Respondent had complied with a Corrective Work Order (“CWO”) that had been issued by the Registrar of Contractors based on their complaint. Complainants requested that they be allowed to present two issues that were not in the CWO but had been brought up during the complaint process prior to the hearing. Respondent did not object to adjudicating those issues. Those issues are allegations that (1) Respondent installed a smoke alarm that may be defective, and (2) Respondent failed to remove, and actually re- used, old ductwork in the HVAC system that was to be removed under the terms of the contract. Those two issues are the only two issues addressed at the hearing. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony from the witnesses above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has violated contracting statutes. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.222488-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction. Dennis Lurvey is the Qualifying Party. 2. As part of a federal housing rehabilitation program, Respondent performed rehabilitation work on Ms. Petit’s home in Scottsdale, Arizona. The scope of the work required from Respondent by the written contract included installing smoke alarms and replacing ductwork for the air conditioning system. 3. Steve Gallant, Building Inspector Supervisor for the City of Scottsdale, testified that as of the date of the hearing, the trunk line of the air conditioning ductwork appears to be the trunk line that was there before the rehabilitation work, and that the return air duct was also pre- existing ductwork. The ductwork in those two areas had not been replaced. However, other lines going off the trunk and the registers are new ductwork. He testified that the ductwork was inspected and passed by the City, but only as to whether it met the building code, not as to whether it met the requirements of the contract. He had no knowledge about the smoke alarm. 4. Barbara Desmond testified that the smoke alarm beeps at random times and for no apparent reason. She has replaced the batteries and it has not alleviated the problem. 5. The contract provision applicable to replacing the ductwork as part of Respondent’s rehabilitation work, under the heading “Replace Ductwork,” required Respondent to Abandon all of the existing duct work. Existing registers shall be removed, openings patched and repaired with sheet rock to match surrounding areas as closely as possible, including tape, texture and paint. Install new metalized insulated flex duct work to code. New ductwork shall run to new ceiling mounted register locations in each room. Include new adjustable flush mounted registers at the end of each run. Refinish to match surrounding areas as closely as possible. Installation shall be in accordance to [sic] manufacturer’s recommendations and all applicable building codes.

Complainants allege that by using old ductwork (the trunk line and return air duct), Respondent did not comply with the contract. 6. Dennis Lurvey testified that the smoke alarm issue was a homeowner maintenance issue that Respondent is not responsible for and that the duct work was acceptable to the City or Respondent would not have been paid. He argued that the silence by the City, the acceptance of the completed work by Complainants, and the fact that the system works well, establish that Respondent met the requirements of the contract. When questioned by the Administrative Law Judge, Mr. Lurvey stated that the work Respondent did meets “the intent” of the contract. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23)(failure to comply with a CWO), and (A)(3) by way of ROC Rule R4-9-108 (poor workmanship). The evidence shows violation of the workmanship standards but not failure to comply with the CWO. 3. The evidence shows that Respondent installed a defective smoke alarm that needs to be repaired or replaced, based on the testimony of Ms. Desmond. Respondent did not meet minimum workmanship standards. 4. The evidence also shows that Respondent did not meet the requirements of the contract with regard to the ducts. The Administrative Law Judge finds that the sentence “Abandon all of the existing duct work” is clear and requires new ducts throughout the house. This is a violation of A.R.S. § 32-1154(A)(2)(requires compliance with plans, specifications, and building codes) because Respondent’s work failed to comply with the specifications in the contract.[4] 5. A review of Respondent’s license status shows that the license is current and active. However, Dennis Lurvey stated at the hearing that the license had recently been suspended. The Administrative Law Judge has no documentation to support that statement. Therefore, the status of the license is unclear. 6. The appropriate sanction in this matter is to allow Respondent an opportunity to correct the items. Failing that, Respondent’s license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license KB-2.222488-D, held by Mbrace Construction LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the two items in Conclusion of Law 3 have been completely corrected as discussed above and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010A-26962200 shall be closed.

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 24, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] Although the Citation and Complaint does not make citation to A.R.S. § 32-1154(A)(2), Respondent waived its right to notice of that provision at the beginning of the hearing when it allowed the issue to be adjudicated.

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