ALJDEC decisions subject to certification as final

2010A-308472404-ROC · Registrar of Contractors · 2011-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife; Respondent was represented by President and Qualifying Party Dave Mason.

WITNESSES: Tom Sandoval, ROC Inspector David Hantzsche Theresa Hantzsche Dave Mason Terry Ellett

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Respondent does not contest the Corrective Work Order issued in this case. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits C1 through C12 submitted by Complainant and Exhibits A through N submitted by Respondent, 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 must perform corrective work or have its license suspended. FINDINGS OF FACT 1. Respondent is the holder of license B.048434-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Dave Mason is the Qualifying Party. 2. Respondent built a house for Complainant, completing it in 2009. On April 16, 2010, Complainant filed a complaint with the ROC that listed seven items in need of repair. ROC Inspector Tom Sandoval inspected those items on April 30, 2010, and, by issuance of a Corrective Work Order (CWO) dated May 3, 2010, ordered corrective work to be done on several of the items. Respondent performed corrective work, but Complainant requested a hearing on three of the items: Item 2 regarding laminate flooring; Item 5 regarding the kitchen countertop; and Item 6 regarding the roof. 3. At the hearing, the parties settled Item 5 during the testimony. They agreed that Respondent will hire a friend of Complainant’s (identified only as “Red”) to fix the countertop. Complainant agreed that this would satisfy Item 5 of the CWO. 4. As to Items 2 and 6, Inspector Sandoval testified that he performed a pre-hearing inspection on April 11, 2011, and found only one problem with the flooring: a cracked transition piece at the bathroom threshold that needs to be replaced. The Inspector also noted three areas of the roof that need to be repaired as to Item 6: a) an area over a back window; b) the valley on the right front of the roof; and c) an “eave portion” over the garage. He testified that the roof could be repaired in the three areas and that replacement of the entire roof was not necessary. 5. Respondent agreed to fix Item 2 and to hire a licensed roofer to fix the three areas of the roof in Item 6. 6. Complainant presented a bid from another contractor for fixing the roof that proposes to replace the entire roof.[1] Given Inspector Sandoval’s clear and credible testimony that the entire roof does not need to be replaced in order to meet minimum workmanship standards, this tribunal finds that the entire roof does not need to be replaced, but can be repaired in the specific areas noted. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9- 108.[5] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. The evidence shows violation of those provisions. 3. A review of Respondent’s license status shows that the license is current and in good standing since 1978. This is an excellent license history. 5. The appropriate sanction in this matter is to allow Respondent to correct the remaining items as agreed to at the hearing. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty for failure to comply with the CWO is warranted in an amount of $150.00. RECOMMENDED ORDER IT IS RECOMMENDED that license B.048434-R, held by Ponderosa Lumber Co. dba at True Value Homes, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Items 2, 5 ,and 6 of the May 3, 2010 CWO have been corrected by appropriate means 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 2010-[number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, Respondent Ponderosa Lumber Co. dba True Value Homes pay a civil penalty of $150.00 to the Registrar of Contractors pursuant to A.R.S. §32- 1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, April 29, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit C12. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] There are also other citations that were not addressed by the evidence presented at hearing.

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