ALJDEC decisions subject to certification as final

2010A-308471940-ROC · Registrar of Contractors · 2010-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2010

APPEARANCES: Complainant Timothy Youso appeared on his own behalf; no one appeared on behalf of Respondent.[1] ROC Inspector Cliff Corlett appeared as a witness. Timothy Youso testified on his own behalf

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship concerning stucco application on a block wall. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits 1 through 10 and P-1 through P-14 (photographs), submitted by Complainant.[2] As noted above, Complainant presented evidence and testimony from himself and Inspector Corlett at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending revocation of the license.

FINDINGS OF FACT 1. Respondent Stucco Masters, Inc. is the holder of license K- 36.191353-D, a dual specialty contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform installation and repair of plaster and like substances for both residential and commercial properties. James Hinojosa is Respondent’s President and Qualifying Party. The license was revoked in September 2010 for failure to pay a civil penalty. 2. This case concerns stucco on poured-in-place concrete perimeter walls at Complainant’s residential property. The wall was inspected in November 2008 by ROC Inspector Cliff Corlett, who found large portions of the stucco popping off the wall. He concluded that the wall was not properly prepared for the stucco and a bonding agent was not used to help the stucco adhere to the wall. Inspector Corlett issued a Corrective Work Order (CWO) to repair the wall, but the CWO was not issued to Respondent due to the circumstances outlined in Finding #3, below. 3. Complainant had originally filed the complaint about the wall against the company that built the wall, Indusco Concrete—a concrete subcontractor, not Respondent, who was the stucco subcontractor.[3] The general contractor for the project was Harris Brothers, Inc.[4] No CWO was issued to Indusco for the stucco because Indusco had not done the stucco work. Complainant then filed against Harris Brothers, Inc., and a CWO was issued to that licensee.[5] Harris Brothers did not take any action, and Complainant then filed against Respondent. No CWO was issued to Respondent because there was a question whether the complaint against Respondent was filed within the statutory two-year period for filing complaints.[6] After that issue was resolved, the case against Respondent was set for hearing only on a charge of poor workmanship. 4. Inspector Corlett testified at the hearing, confirming that the stucco on the wall is breaking off in several areas. He testified that the poor condition of the stucco is due to Respondent’s poor work and does not meet workmanship standards. His testimony is supported by the photographs admitted into evidence as Exhibits P-1 through P-14. 5. The evidence shows poor workmanship with regard to Respondent’s stucco work. Corrective work is needed. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[7] Further, the standard of proof at hearing is by preponderance of the evidence.[8] 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.[9] Complainant has met that burden. 2. Complainant’s evidence is uncontested. 3. The evidence shows that the stucco work does not meet minimum workmanship standards. This is a violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108. 4. Respondent’s license is currently revoked. 5. Pursuant to A.R.S. § 32-1154(C), a prior revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to revoke the license in this matter. Given the current status of Respondent’s license, this tribunal recommends revocation of the license. Complainant may then make a claim to the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that license K-36.191353-D, held by Stucco Masters, Inc., be revoked beginning the effective date of the Registrar’s Order.

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, November 30, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A few days before the hearing, Respondent filed a motion to postpone the hearing date. That motion was denied by Order dated November 10, 2010. [2] Materials from ROC complaint files L08-0356 and L09-0141 were also part of the complaint file in this case. [3] That complaint was L08-0356. [4] Exhibits 1 and 5. [5] Complaint L09-0141. [6] Inspector Corlett eventually resolved the issue in favor of Complainant by relying on a Certificate of Occupancy. That decision was addressed at the outset of the hearing, and the Administrative Law Judge agreed with the Inspector’s conclusion. Respondent was not present to object to that issue. [7] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [8] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [9] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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