ALJDEC decisions subject to certification as final

2010A-308475254-ROC · Registrar of Contractors · 2011-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2011 and May 4, 2011 APPEARANCES: Angela Riccobono appeared personally and was represented by her attorney, Timothy Ducar, Esq. Living Forest Construction, P.L.L.C. was represented by its authorized representative, Jarrad Duxbury. 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. Living Forest Construction, P.L.L.C. (“Respondent”) is the holder of License No. 265591, a Class C-37 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Angela Riccobono (“Complainant”) is the owner of a residence located at 817 North 9th Avenue, Phoenix, Arizona. 3. In 2010, Complainant and Respondent entered into a series of written agreements for remodeling work at the subject residence. Respondent’s contracting license number was not properly listed in those agreements. 4. In August 2010, Complainant filed a Complaint with the Registrar alleging 21 Complaint items against Respondent. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 5. Complainant later filed two addenda to her Complaint that added Complaint items number 22 to 33. 6. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1124(B), (20), and (23). 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. In response to the filed Complaint, the Registrar’s then assigned inspector, Craig Williams, performed a jobsite inspection to view the Complaint items in the original Complaint. 9. On September 13, 2010, Inspector Williams issued a Corrective Work Order, the terms of which are incorporated herein by reference. The written directive addressed each of the original 21 Complaint items. The Corrective Work Order directed Respondent to timely perform remedial action to the following Complaint items: Nos. 2, 4, 6, 8, 9, 11, 12, 15, 16, 19, and 21. No action was required by Respondent regarding Complaint items: Nos.1, 3, 5, 6, 7, 10, 13, 14, 17, 18, and 20. 10. In response to Complainant’s addenda to her Complaint, Inspector Williams issued a second Corrective Work Order dated October 20, 2010, the terms of which are incorporated herein by reference. The second written directive addressed Complaint items 22 through 33. The second Corrective Work Order directed Respondent to timely perform remedial action to the following Complaint items: Nos. 22, 23, 24, 25, 26, 27, 28, 29, 30, and 33. No action was required of Respondent regarding Complaint items: Nos. 31 and 32. 11. On April 27, 2011, the Registrar’s presently assigned inspector, Jeff Fleetham, performed a prehearing jobsite inspection to view the Complaint items. 12. Inspector Fleetham’s testimony was consistent with Inspector Williams’ findings in the two Corrective Work Orders. 13. Complaint item number 9 has been resolved by Complainant’s stepfather, a non-licensed individual who installed the tub. 14. There is no credible evidence establishing that Respondent removed Complainant’s hot water heater from the property. A new unit was purchased and installed by Complainant’s boyfriend, who is a co-owner of the property. The boyfriend also capped a gas pipe. 15. Complainant’s stepfather also performed plumbing work to her shower and installed a toilet. 16. There is strong animosity between the parties and between Respondent and Complainant’s mother. Complainant’s mother has lent her money for the remodeling project, but does not have privity of contract with Respondent. 17. The evidence of record established that Respondent was denied reasonable and timely access necessary to comply with the Registrar’s two Corrective Work Orders issued in this matter. 18. Respondent is determined responsible for performing the remedial work required by the Corrective Work Orders, except for the work performed by Complainant’s stepfather and boyfriend described in the above Findings of Fact. In addition, Respondent does not have to take directions from Complainant’s mother during the performance of its remedial work. 19. The financial dispute between the parties should be resolved in a civil court of competent jurisdiction that would have jurisdiction over both parties, rather than this administrative disciplinary proceeding by the Registrar against Respondent’s contracting license. 20. Any allegation not specifically addressed in the above Findings of Fact is deemed to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation by Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter 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) (2), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 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 supports this conclusion. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list its contracting license on its written contracts with Complainant. 6. There is insufficient evidence to establish that Respondent violated the provisions of A.R.S. § 32-1154(A) (20), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain her burden of proving Complaint item number 1: “misrepresentation of experience, liscene [sic] #’s [sic].” 7. While Respondent did not perform the remedial work required by the Registrar,s two Corrective Work Orders, there is credible evidence establishing that Respondent was denied reasonable and timely access to comply with those written directives. Therefore, the Administrative Law Judge concludes that Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 265591 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides written proof to the Registrar, and the Registrar approves such proof, that Respondent has fully complied with the two Corrective Work Orders, with the exception of the work performed by Complainant’s stepfather and boyfriend as described in the above Findings of Fact, and that Respondent has become fully compliant with the provisions of A.R.S. § 32-1124(B). If Respondent provides written proof to the Registrar that Respondent has fully complied with the two Corrective Work Orders, with the exception of the work performed by Complainant’s stepfather and boyfriend as described in the above Findings of Fact, and that Respondent has become fully compliant with the provisions of A.R.S. § 32-1124(B), and the Registrar accepts proof of such compliance, then the above-provided license suspension shall not take place. Any unreasonable denial of access to the subject property by Complainant necessary for Respondent’s compliance with this Order shall excuse Respondent’s performance of the required remedial work necessary to avoid the suspension of Respondent’s License No. 265591 in Case No. 2010- [number redacted]. In addition to the foregoing license suspension, if any, Respondent’s License No. 265591 shall be placed on probation for a period of 120 days commencing on the effective date of the Order entered in Case No. 2010- [number redacted] or the date on which the Registrar approves proof of Respondent’s compliance with this Order, whichever is later. In addition to the above-provided penalties, if any, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $3,000.00, such bond or deposit to be in addition to the required surety bond, cash bond or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period and only if no claims are then pending. 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, May 24, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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