ALJDEC decisions subject to certification as final

2010A-308475908-ROC · Registrar of Contractors · 2012-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2012

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by Qualifying Party Peter Whitfield and Member Joy Whitfield.

WITNESSES: Dennis Cook, ROC Inspector Sandra Luehrsen Peter Whitfield Joy Whitfield

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order (“CWO”) with regard to a patio cover built by Respondent. Respondent admits that corrective work is needed and is willing to do it, but has not done it due to a dispute with Complainant about whether a permit is required from the local building authority. Complainant has not allowed access to do the corrective work until that issue is resolved. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar” or “ROC”) into the record. The parties presented evidence, including Complainant’s Exhibits A, B, and C and Respondent’s Exhibits 1, 2, and 3, and testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending that Respondent hire another licensed contractor to do the corrective work or have its license revoked. FINDINGS OF FACT 1. Respondent is the holder of License No: K-3.219862-D, a specialty dual contracting license issued by the Registrar. The license authorizes Respondent to install and repair awnings, canopies, patio covers, and other coverings for both commercial and residential projects. 2. In November 2008, Complainant hired Respondent to install one large and one small fabric shade sail covering for her back patio and back doorway.[1] By the terms of the agreement, Complainant was responsible for obtaining “all permits necessary for the work to be performed.”[2] Neither Complainant nor Respondent obtained a permit; Complainant did not do so because Respondent did not think one was necessary and Respondent did not do so because by contract it was Complainant’s responsibility. Work commenced but there were problems with the result. Initially, a shade sail was installed that leaked. Another shade sail was then installed, and that one leaked as well. Finally, Complainant agreed to a corrugated polycarbonate panel cover instead of the shade sail. When that cover had problems too, Complainant filed her complaint with the Registrar. 3. On October 13, 2010, ROC Inspector Dennis Cook issued a CWO after inspection of the jobsite. He found all eight complaint items to be in need of correction, and characterized aspects of the work as sloppy, unsightly, and not professional-looking. 4. Complainant offered evidence from the City of Tempe that proved that a permit was required for the work that Respondent did.[3] In addition, Inspector Cook testified that any contractor would know that a permit was required because the structure was attached to the house. 5. Complainant offered testimony that she had lost faith in Respondent’s ability to do a good job and she wanted another contractor to do any further corrective work. She did not, however, provide estimates from other contractors for the cost of the corrective work. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (failure to follow plans, specifications, or building codes), A.R.S. § 32-1154(A)(3), by way of Arizona Administrative Code (A.A.C.) R4-9-108 (poor workmanship), and A.R.S. § 32- 1154(A)(23) (prohibits failure to comply with a CWO). The evidence shows violation of the first two of those provisions. 3. Although obtaining a permit was delegated to Complainant by the agreement, Respondent should have been aware of the need for a permit and Respondent should not have built the structure without one. By building without a permit, Respondent violated A.R.S. § 32-1154(A)(2). 4. In addition, the evidence shows that Respondent’s workmanship was poor as detailed in the CWO. That is a violation of A.R.S. § 32- 1154(A)(3). 5. Finally, Respondent did not comply with the CWO. However, the evidence shows that this was because Respondent was not allowed access by Complainant, who had lost faith in Respondent’s abilities. This tribunal finds that Complainant had reason to lose faith in Respondent’s abilities, and good reason to deny access to make corrections. But, without access, Respondent was not able to comply with the CWO, and no violation of A.R.S. § 32-1154(A)(23) has been shown. Instead, Complainant has shown that Respondent should not perform any of the corrective work. 6. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on April 24, 2012. That prior record shows that Respondent has held the license since May 2006 and has never been disciplined. This is a good record. 7. The appropriate sanction in this matter is to require Respondent to arrange for another appropriately licensed contractor to make the required corrections in the CWO, after a permit is obtained, at Respondent’s expense.[7] If Respondent does not do so in a timely manner, the license should be revoked. RECOMMENDED ORDER IT IS RECOMMENDED that License No: K-3.219862-D, held by Desert Sails, LLC dba Ultimate Shade Alternatives, be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives and accepts written proof that Respondent has caused another properly licensed contractor to make the corrections detailed in the CWO and bring the work up to workmanship standards. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2010-[number redacted] 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, April 24, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 2. [2] Id. at 2. [3] Exhibit A. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] Respondent should do everything in its power to facilitate getting a permit issued. Complainant is only responsible for the cost.

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