ALJDEC decisions subject to certification as final

2010A-308475467-ROC · Registrar of Contractors · 2011-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 25, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife Frances Dodwell; Respondent was represented by Managing Member and Qualifying Party Jerry Taylor.

WITNESSES: Bill Redman, ROC Inspector Thomas Dodwell Frances Dodwell Jerry Taylor

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship. The Citation and Complaint issued by the Registrar of Contractors cites allegations of abandonment of the project, poor workmanship, working beyond the scope of the license, and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits C1 through C30 submitted by Complainant, 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 has violated contracting statutes and recommending provisional suspension of its license. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.237194-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction, except for specialty contracting work such as electrical, plumbing, etc. Jerry Taylor is the Qualifying Party. 2. In 2009, Complainant hired Respondent to remove a breezeway from a house he had just purchased. The breezeway had been installed by the previous owner and was in violation of local building code. It connected the main house with a stand-alone garage/office building. The parties entered into a verbal agreement for the demolition and removal of the breezeway, including a bathroom that was part of the breezeway, and involved repair of walls, plumbing, electrical, stucco, and interior and exterior paint. 3. Respondent completed the bulk of the work, and Complainant paid in full. Touch ups and corrections were needed, but Complainant had a hard time contacting Respondent. Complainant filed a complaint with the ROC in August 2010, listing a number of items in need of correction. 4. In September 2010, ROC Inspector Bill Redman inspected the jobsite. Respondent was not present for that inspection. The Inspector issued a Corrective Work Order (CWO) on September 3, 2010 that ordered various corrective work be done. Inspector Redman’s findings, which he reviewed during his testimony at the hearing, were as follows: Item 1) Stucco cracking on house and garage walls. The Inspector ordered Respondent to determine the cause and repair in a workmanlike manner. He specifically pointed out that any “J channel or other metal trim that was around the old door or window must be properly removed. . . .”

Item 2) Repair upper areas of stucco in Item 1.

Item 3) Repaint house and garage walls “to provide proper coverage” and match color as close as possible.

Item 4) Water line bibs were properly installed.

Item 5) Have a properly licensed plumber install a clean out where the toilet was removed.

Item 6) Reimburse Complainant for electrical repairs that Complainant had to purchase from another contractor to correct Respondent’s improper electrical work.

Item 7) Repaint interior walls and match color as close as possible.

Inspector Redman also issued a warning letter to Respondent, stating that Respondent had operated beyond the scope of its license by performing electrical and plumbing work that required a specialty license. 5. No corrective work was done. 6. Complainant and his wife testified at the hearing and submitted photographs showing all the areas that need work that were mentioned in the CWO. Included in Complainant’s exhibits is an invoice for the electrical work that was re-done by an electrician (CWO Item 6) at Complainant’s expense for $75.00. 7. The evidence shows extremely poor workmanship by Respondent. It also shows that Respondent operated outside the scope of its license by doing plumbing and electrical work. 8. Jerry Taylor testified in support of the workmanship. He denied the problems or blamed them on the products used. He stated that he is willing to do corrective work, but this tribunal does not find his testimony credible. Instead, this tribunal finds that Respondent is not willing or able to do the corrective work. It should be performed by another licensed contractor at Respondent’s expense. 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)(1)(prohibiting abandonment of a contract without legal excuse), (A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), (A)(17) (prohibiting knowingly contracting beyond the scope of a license), and (A)(23) (prohibiting failure to comply with a CWO). The evidence shows violation of all those provisions except for abandonment of the contract. 3. A review of Respondent’s license status shows that the license is current and in good standing since 2007. However, Respondent is either not willing or able to perform the corrective work. Therefore, Respondent must cause that work to be done by others. 4. The appropriate sanction in this matter is to allow Respondent an opportunity to cause another properly licensed contractor to perform the corrections noted in Finding of Fact 4 above. If Respondent does not do so in a timely manner, its 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 KB-2.237194-D, held by Taylor’s Rolling Thunder Construction, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the September 3, 2010 CWO Items 1, 2 ,3, 5, 6, and 7 (as written in the CWO and as described above in Finding of Fact 4) have been corrected by appropriate means by another contractor 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 Taylor’s Rolling Thunder Construction, LLC 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, May 12, 2011.

/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).

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

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