ALJDEC decisions subject to certification as final

2010A-308474533-ROC · Registrar of Contractors · 2012-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared on his own behalf. Respondent appeared through its authorized representative, John Douglas Bowers. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. KB-1.220809-D issued by the Registrar of Contractors. 2. This is a residential matter in which Complainant purchased a new residence constructed by Respondent. 3. Shortly after occupying the residence, Complainant identified several workmanship deficiencies in the new residence and notified Respondent of the problems. 4. When Respondent failed to resolve the identified workmanship deficiencies, Complainant filed a formal complaint against Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 11, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: 1. South side wall of garage above water heater door, roof is leaking: Roof needs to be made water tight. 2. Spare bedroom ceiling is leaking, replace drywall: Roof needs to be made water tight and water damaged drywall repaired and painted to match existing as close as possible. 3. Up stairs bathroom walk, nails popping out of drywall: Nail pops need to be properly repaired and painted to match existing as close as possible. 4. East side wall of kitchen electronics won’t work: Receptacles and light switches need to function correctly. 5. Stove doesn’t have feet: Height adjustments need to be installed. 6. Kitchen, upstairs bedroom, downstairs windows still don’t have screens: Install all window screens. 7. Did not replace drywall when master bedroom leaked: Needs to be properly repaired and painted to match existing as close as possible. 8. Both bathtubs leak: Needs to be properly corrected. 9. Around windows the seals are bad: Needs to be properly corrected. 10. Seals around sinks and tubs in both bathrooms are bad: Needs to be properly corrected. 11. Water heating space needs better ventilation: Vents need to be installed. 12. Stucco cracking was part of original agreement: Several cracks do not meet the standards. 13. Some of the tiling not placed right and make hollow sound: Needs to be properly corrected. 15. Smoke detectors are not hardwired as per code: Needs to be properly corrected and per code. 16. Roof needs to be replaced, not even tow years old, we have to deal with a leaking roof: Roof needs to be made water tight. 17. Holes in stucco outside walls: Needs to be properly corrected. 18. Foundation where stucco meets outside need to be sealed: Needs to be properly corrected. 19. Electrical box not labeled: Needs to be properly labeled. [1]

7. The assigned Agency Inspector testified that he conducted an onsite pre- hearing inspection and observed evidence that Complainant’s roof still leaked. In addition, the assigned Agency Inspector testified that the smoke detectors in the residence had still not been hardwired and the electrical box had not been labeled as required by applicable code requirements. 8. Complainant testified that his roof still leaked despite Respondent’s repeated repair attempts and that none of the items set forth in the Corrective Work Order had been properly corrected. 9. Credible testimony and evidence established that Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 10. When the Respondent failed to resolve the problems with the leaking roof, Complainant retained an independent inspection service to inspect his new residence. 11. Complainant’s inspection service recommended that the entire roof on Complainant’s residence be removed and replaced. 12. Respondent departed from or disregarded applicable building codes in its construction work on Complainant’s residence by failing to label the electrical box and hardwire the smoke detectors in Complainant’s residence. 13. The undisputed fact that the Respondent has made repeated unsuccessful repair attempts on Complainant’s roof precludes a finding that Respondent abandoned the construction project at issue. 14. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor, of Complainant’s choice at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order issued in this matter. 15. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 21, 2012. Such prior License record reflects that License No. KB-1.220809-D, of Sonora Utah Development Lc was current and in good standing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. The credible evidence of record fails to support a finding that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(1) (abandonment or refusal to perform). 4. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(2) (departure from or disregard of any building codes), A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action), and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that shall License No. KB- 1.220809-D of Sonora Utah Development Lc be suspended until the Registrar receives, and accepts, written proof that Respondent has caused properly licensed contractors, of Complainant’s choice and at Respondent’s sole expense, to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors 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 this matter, shall result in the automatic revocation of Respondent’s contractor’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 payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, June 6, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Corrective Work Order (August 8, 2010) p. 2-3

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