ALJDEC decisions subject to certification as final

2010A-308472677-ROC · Registrar of Contractors · 2010-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2010

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Ken Gregory.

WITNESSES: William Redman, ROC Inspector Frank Grosey Carol Grosey Charles Wheaton, Qualifying Party Steven Wheaton

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent Wheaton Building. The only issue raised and argued at hearing was whether Respondent followed the contract specifications when installing new vinyl flooring in Complainant’s house. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing, including Exhibit packets from both parties. 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 failed to follow contractual specifications.

FINDINGS OF FACT 1. Respondent is the holder of a class B general residential contracting license (No. 209875) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. 2. In September 2009, Respondent submitted a bid to Bullhead City (“the City”) to perform work on Complainant’s manufactured home under a public grant. The City approved Respondent’s bid and hired Respondent to perform the work on Complainant’s house. Part of the work was in the kitchen area and required that Respondent “Tear out vinyl on kitchen floor. Need to do an over lay [sic] and lay down new vinyl flooring.” The uncontested testimony at hearing was that an “overlay” referred to plywood under the vinyl flooring. 3. Respondent did not tear out the old vinyl. Instead, Respondent, through a subcontractor, applied a cement-like thin-set material that spreads as a liquid and then hardens on top of the old vinyl to flatten and strengthen the floor. On top of that, Respondent installed new vinyl. 4. Complainant filed a complaint. ROC Inspector Bill Redman performed an on-site inspection and issued a Corrective Work Order (“CWO”) dated December 3, 2009. The CWO required Respondent to repair the kitchen floor “as outlined in the proposal/scope of work,” referring to the bid accepted by the City. 5. The evidence shows that Respondent was prevented from complying with the CWO because Complainant wanted to dictate the terms of the repair. While Complainant has the legal right to dictate the terms upon which Respondent can enter the property, Complainant’s actions absolve Respondent from being found to have failed to comply with the CWO. The evidence shows that Respondent was willing to do so, but did not purposely fail to do so. 6. The evidence also shows that Respondent did not follow the specifications in the bid, which called for tearing out the old vinyl, installing a new overlay, and placing the new vinyl on top of that.

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)(2), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(2) requires that construction meet plans, specifications and building codes. 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. 3. The evidence submitted shows a violation of (A)(2), but no other subsection . Respondent failed to install the flooring in the manner specified in the contract. The fact that the City accepted the floor as built does not preclude Complainant, as an intended beneficiary of the contract, from insisting that the floor meet the specifications in the contract. 4. Respondent bears the responsibility for installing the flooring according to specifications. 5. Respondent is found to have violated Arizona contracting statutes and is subject to disciplinary action. A review of current ROC records shows that Respondent’s license is active and in good standing. 6. The appropriate sanction in this matter is to allow Respondent to make the corrections. If Respondent does not do so in a timely manner, its license should be suspended. If Respondent does the work, the case should be closed. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 209875, held by Wheaton Building, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof of correction of the work described 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 2010-[number redacted] (formerly H10-0077) 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, September 22, 2010.

/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).

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