ALJDEC decisions subject to certification as final

2010A-308472105-ROC · Registrar of Contractors · 2011-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2011 APPEARANCES: Soraya Bellon and Luis Gerardo Mireles appeared personally. 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. Luis Gerardo Mireles, doing business as New Base Plastering (“Respondent”), is the holder of License No. 204409, a Class K-36 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Soraya Bellon (“Complainant”) was the owner/builder of a residence located at 10336 N. Derrio Canyon Place, Oro Valley, Arizona. 3. Complainant hired Respondent to stucco her home. 4. On April 1, 2010, Complainant filed a written Complaint with the Registrar alleging deficient workmanship by Respondent at twelve scupper locations that were not properly trimmed, sealed, and stuccoed. 5. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted]. 6. In response to the filed Complaint, the Registrar’s assigned inspector, Greg Koeneman, performed a jobsite inspection on August 26, 2010, to view the Complaint items. 7. During the jobsite inspection, Respondent agreed to perform remedial work to the Complaint items. 8. Inspector Koeneman issued a Corrective Work Order directing Respondent to timely perform remedial work to the Complaint items. 9. The Registrar later issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (3), namely A.A.C. R4-9-108, and (23). 10. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 11. Respondent failed to comply with the Corrective Work Order despite the parties’ agreement reached at the jobsite inspection. 12. Respondent contends that he is not responsible for the deficient stucco workmanship due to the deficient workmanship of Complainant’s roofing subcontractor. However, Inspector Koeneman credibly testified that Respondent accepted the surface of the roof, including the scuppers, when he performed work on those surfaces. Inspector Koeneman noted that Respondent failed to inform Complainant about any concerns about the roofer’s workmanship. 13. Complainant’s claim for compensatory damages resulting from Respondent’s deficient workmanship, for example, the expenses incurred in removing bees from cavities in Respondent’s deficient stucco application, are outside the Registrar’s jurisdiction. 14. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 204409 was voluntarily cancelled on May 20, 2009. 15. By virtue of the status of Respondent’s contracting license being voluntarily cancelled at the time the parties entered into the jobsite agreement, it is implicit that Respondent had to reactivate his contracting license to be permitted to perform the agreed upon remedial work. However, there is no evidence that Respondent undertook steps to reinstate his contracting license. 16. The Administrative Law Judge determines that Respondent abandoned his scope of work on Complainant’s project. Respondent voluntarily cancelled his contracting license 11 months prior to Inspector Koeneman’s jobsite inspection and the issuance of the Corrective Work Order. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the voluntary cancellation of Respondent’s contracting license does not deprive the Registrar of jurisdiction to impose discipline upon that license for proven statutory and/or regulatory violations 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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent abandoned Complainant’s project without legal justification. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent’s workmanship failed to meet workmanship standards. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with the Registrar’s Corrective Work Order directing him to timely perform remedial work to his deficient workmanship per the parties’ jobsite agreement.

RECOMMENDED ORDER Respondent’s License No. 204409 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. 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-[number redacted] shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to an entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding 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, February 23, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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