ALJDEC decisions subject to certification as final

2010A-308472534-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 24, 2011, at 8:15 a.m. APPEARANCES: Complainant Oriol’s Mexican Restaurant and Seafood, Inc. appeared through Tesur B. Oriol, its manager, and Maria Alonso, its president; Respondent Thyberg Development, L.L.C. appeared through Larry Thyberg, its qualifying party and member; Interpreter Sylvia Gallegos provided Spanish-English and English-Spanish translation. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In February 2007, the Registrar of Contractors (“the Registrar”) issued License No. ROC230182, Class KB-1 for dual building contracting to Thyberg Development, L.L.C. (“Respondent”). On April 21, 2010, the Registrar received a complaint from Maria Alonso on behalf of Oriol’s Mexican Food and Seafood, Inc. (“Complainant”) against Respondent concerning 13 specific items at Complainant’s restaurant at 1595 Mohave Drive, Bullhead City, Arizona 86442 (“the restaurant”). According to the complaint, the date of the parties’ contract was February 16, 2006, and Respondent completed work in October 2008. The Registrar’s inspector, William Redman, performed a jobsite inspection. On June 16, 2010, Inspector Redman issued a Corrective Work Order (“CWO”) to Respondent, directing it within fourteen days to correct the following: 1. The breakers were working properly at the time of the inspection. 2. Determine the cause of the hot water heater room over heating and repair same by proper methods. Any changes to this space must be approved prior to the work being started by THE CITY BUILDING DEPARTMENT. 3. The property owner is responsible for adjustments to the heating / cooling ducts after the first year of occupancy. 4. Determine the best and proper way to lower the floor drain in the prep area so that same functions as indented [sic]. 5. The lights that stay on are night lights and are suppose [sic] stay on for security as well as safety reasons. 6. The building is insulated per the plans and was approved by the city building department. 7. Determine why the hood over the cooking area is not drawing properly and repair same as needed. 8. The AC ducts appeared to have been working at the time of the inspection, no further action required. 9. Same as #1.[2] 10. The contractor shall provide proper drainage away from the building as required by code base [sic] on water flow as determine [sic] by the project engineer. 11. The issue with the divider in the mens [sic] room was properly repaired prior to the job site inspection[. N]o further action required.

[Emphasis in original; footnote added.] On January 3, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108, and (23). 5. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that it had completed repairs, but that Complainant purchased the range hood (CWO #7) and had the seller install it. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. A videoconference hearing was held from the Registrar’s office in Kingman, Arizona on May 24, 2011. Inspector Redman testified. Complainants submitted five exhibits and presented the testimony of two witnesses: (1) Tesur B. Oriol, Complainant’s manager; and (2) Henry Castro, Complainant’s realtor, who was present throughout construction and provided translation in the parties’ communications. Respondent presented the testimony of two witnesses: (1) Larry Thyberg, Respondent’s qualifying party and member; and (2) Ruben Rodriguez, an employee of C T D, Inc., License No. ROC233929, Class K-11 for dual electrical contracting, who checked the electrical system at the restaurant. 8. According to the Registrar’s electronic record, on April 3, 2011, Respondent’s license was suspended by operation of law for failure to renew. Additional Evidence 9. Inspector Redman testified that Respondent provided additional ventilation in the utility room to keep the hot water heater from overheating (CWO #2). 10. Complainant did not offer any evidence about the hot water heater or about whether Respondent’s addition of ventilation kept the hot water heater from overheating. 11. Inspector Redman testified that the electrical panel also was in the boiler room and that the lack of ventilation may in the past have caused the breakers to trip, although the breakers did not trip at his jobsite inspection (CWO #1). 12. Mr. Rodriguez testified that he tested the electrical system on the restaurant in July 2010. The restaurant had two 200-amp service panels. Mr. Rodriguez testified that one panel was drawing 160 amps, and the other was drawing 130 amps. Mr. Rodriguez testified that he also tested the 42 individual circuits in the breakers, most of which were 20- amp circuits, and that all the circuits were drawing less than their capacity and less than would trip the breaker. 13. Complainant submitted photographs of electrical splices in the attic. Mr. Oriol testified that the photographs showed poor workmanship. 14. Inspector Redman testified that the electrical work in Complainant’s photographs did not relate to any item in the April 2010 complaint and, therefore, were beyond the scope of the hearing. 15. Mr. Thyberg testified that Complainant added many fans and electrical circuits for the fans to the restaurant. 16. With respect to CWO #4, Inspector Redman testified that the kitchen floor was about 1½” lower than the dining room floor to keep flooding in the kitchen from overflowing into the dining room. Inspector Redman testified that the kitchen floor was flat and did not slope toward the floor drain. Inspector Redman testified that although Respondent constructed the kitchen floor according to plan, applicable code requires floors in commercial kitchens to slope toward the drain. 17. Inspector Redman testified that Respondent had filed down a grate in the kitchen, but Respondent’s repair was insufficient to make the kitchen floor code compliant. Inspector Redman testified that code requires a ½” to ¾” difference between the outside wall and the drain in a commercial kitchen to provide proper drainage. Inspector Redman testified that he did not know how the kitchen floor could be corrected, other than removing the concrete and/or redoing the tile. 18. Neither party presented additional evidence regarding the kitchen floor at the hearing. 19. With respect to CWO #7, Inspector Redman testified that the kitchen hood did not work because there was not enough “make- up air” in the kitchen to supply the fans and that Respondent did not repair the hood. 20. Neither party presented additional evidence regarding the kitchen hood at the hearing. 21. With respect to CWO #10, the site drainage, Inspector Redman testified that the lot adjacent to the restaurant is higher than the lot on which the restaurant is located. Inspector Redman testified that Respondent improved drainage by installing pipes to divert drainage from the restaurant’s scuppers to the front and back of the lot. Inspector Redman testified that Respondent’s repair to the site drainage was appropriate. 22. In response to Complainant’s questions about how long Respondent’s repair to the site drainage would last, Inspector Redman testified that it would depend on whether the pipes were maintained and what happened in the parking lot. Inspector Redman testified that he does not become involved in site plans after the municipality has approved such plans. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] The administratively suspended status of Respondent’s license does not preclude Complainant from pursuing its administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[7] Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[8] and (23)[9] in its initial construction of and failure to repair the kitchen floor that did not drain properly and the kitchen hood that did not draw properly (respectively, CWO #4 and #7). Respondent’s administratively suspended license currently prevents it from performing further repairs or hiring other licensed contractors to perform such repairs.[10] RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar revoke License No. ROC230182 previously issued to Respondent Thyberg Development, L.L.C. It is further recommended that the Registrar not revoke Respondent’s license and, instead, close Case No. 2010-[number redacted] if on or before the effective date of the Registrar’s order, Respondent provides written proof that satisfies the Registrar that it has done either one of the following:

(1) Respondent renewed and reinstated its license and repaired in a professional and workmanlike manner Complainant’s kitchen floor and kitchen hood (respectively, CWO #4 and #7); or (2) Respondent paid to Complainant, and Complainant accepted Respondent’s payment of an amount of money to resolve outstanding issues relating to Complainant’s kitchen floor and kitchen hood (respectively, CWO #4 and #7). It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such 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 Respondent tenders payment of any outstanding prior civil penalty. 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 7, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The complaint form indicates that the Complainant’s name is “Oriol’s Mexican Restaurant.” Before the hearing, the Administrative Law Judge consulted the records of the Arizona Corporation Commission to ascertain the identity of Complainant’s principals and their ability to represent it at the hearing. The Administrative Law Judge amends the caption to show Complainant’s full legal name, “Oriol’s Mexican Restaurant and Seafood, Inc.” [2] The first item on Complainant’s complaint to the Registrar stated that “[b]reakers trip under load easily.” The ninth item stated that “[t]he breakers seem to be too small to carry the load and there seems to be many units hooked to the same breaker.” [3] See A.R.S. § 32-1101 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [8] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [10] It is unlawful for anyone without a contractor’s license in good standing to engage in contracting. See A.R.S. § 32-1151. “Contractor” is defined as anyone who “does himself or by or through others” performs construction. A.R.S. § 32-1101(A)(3) (emphasis added).

-----------------------

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