ALJDEC decisions subject to certification as final

2010A-308476080-ROC · Registrar of Contractors · 2011-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by corporate President and Qualifying Party Ron Meneou and Vice President/Secretary Holly Meneou.

WITNESSES: Phil Coscia, ROC Inspector James Corcoran Ron Meneou Holly Meneou

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship 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 2, 4a, 4b, 4c, and P6—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 that Respondent must perform minor corrective work or have its license suspended.

FINDINGS OF FACT 1. Respondent is the holder of license B.179683-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Ron Meneou is the Qualifying Party. 2. Respondent built a house for Complainant, completing it in 2010. On September 23, 2010, Complainant filed a complaint with the ROC that listed multiple items in need of completion or repair. Complainant also filed addendums to the complaint. ROC Inspectors Cliff Frandsen and Phil Coscia inspected the items on several occasions and issued Corrective Work Orders (CWOs) dated October 31, 2010, December 6, 2010, and March 16, 2011. 3. At the hearing on July 22, 2011, Complainant identified a few items from the most recent CWO (hereinafter “the March 2011 CWO”) and one item from the complaint that he was bringing to the hearing for adjudication. These were identified as: (a) grout around bathtub (from the first unnumbered complaint item in the March 2011 CWO), (b) rain gutters (from item 2 of the March 2011 CWO), (c) striker plates (from item 6 of the March 2011 CWO), (d) clean up of premises (from item 4 of the March 2011 CWO), (e) painting inside the pantry (from item 7 of the March 2011 CWO), and (f) painting touch up and drywall issues in the garage (from item 7 of the complaint). 4. During the hearing, Complainant withdrew hearing item (b) as an issue for adjudication because the rain gutters had been repaired by others. 5. Inspector Coscia testified at the hearing about the other issues. He testified that hearing item (a), bathtub grout, had been repaired prior to his pre-hearing inspection on July 20, 2011, and that it meets workmanship standards. He testified that Respondent had installed all striker plates (hearing item (c)) except one, and that that one was given to Complainant at the July 20, 2011 inspection when Complainant refused to have Respondent install it at that time. He testified that Respondent had done touch up painting in the pantry (hearing item (e)), and he understood that the item was corrected; therefore, he did not make a determination about it on July 20, 2011. Finally, he testified that he observed an area on the ceiling of the garage that needed touch up (hearing item (f)). 6. With respect to the clean up issue (hearing item (d)), the March 2011 CWO had not ordered any action by Respondent. Inspector Coscia testified that he was not sure whether the materials that were left on the property were owned by Complainant or were the responsibility of Respondent to remove. 7. Photographs in Exhibits 4a, 4b, and 4c show a neat pile of construction materials on Complainant’s property. Complainant testified that there are also materials in the garage that Respondent should have removed as part of clean up. He does not want the materials in the garage or the materials in the yard and asserts that Respondent should have removed them. However, the evidence shows that the communication about Respondent’s responsibility for those materials was not clear. Furthermore, even considering Exhibit P6 (a photograph of a small area on the property), the evidence does not show that Respondent left trash on the site. 8. With regard to the striker plates (hearing item (e)), Complainant testified that Respondent did not timely make the correction that was ordered by the March 2011 CWO. Ron Meneou testified that when he ordered the striker plates, he did not count the front door; therefore, he had one less than he needed. This was discovered when they were installed, and he ordered another. However, the plates were then on backorder, and he had to wait for it. He testified that he received the last striker plate in early June and wanted to install it when they went out to do other work. Because it is a part-time home for Complainant, he is not always there. Ron Meneou delivered the striker plate at the July 20, 2011 inspection, and Complainant chose to install it himself. This evidence shows that while Respondent did not meet the timeline in the March 2011 CWO, Respondent showed some diligence. 9. The pantry (hearing item (e)) was addressed by both parties in their testimony. Ron Meneou testified that his worker who painted the pantry had told him that the touch up corrective work was done and that Complainant was satisfied. Complainant testified that work was done, but there are still spots to finish. After weighing the evidence, it supports a finding that this item has been completed. 10. In summary, the evidence shows that hearing items (a), (b), (c), and (e) have been corrected. Hearing item (d), clean up, is not quite complete. Complainant must put all items he wants removed in one place, and then Respondent must haul it away. This did not happen because of poor communication from Complainant to Respondent. Finally, based on Inspector Coscia’s testimony, there is one area on the garage ceiling that needs correction. Therefore, hearing item (f), the garage ceiling, has one correction left to be made. 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 with regard to one item. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9-108. 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. The evidence shows violation of workmanship standards only with respect to the one area on the garage ceiling (hearing item (f)). 3. The evidence does not show failure to comply with the March 2011 CWO. The work that remains is to haul away the materials/debris designated by Complainant and to touch up the garage ceiling spot. These items do not constitute noncompliance with the March 2011 CWO because the garage work was not on it and the removal work was not ordered by it. The removal work was not made clear by the Complainant, but the materials are clearly construction-related and should be removed by Respondent. 4. A review of Respondent’s license status shows that the license is current and has been in good standing with no disciplinary actions since 2002. This is a good license history. 5. The appropriate sanction in this matter is to allow Respondent to perform the minor items identified above. Those minor items are hearing item (d), removal of materials—but only if Complainant designates the materials to be removed by piling them in a specific area on the outside of the home—and hearing item (f). If Respondent does not do these things in a timely manner, the license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license B.179683-R, held by R and H Remodeling, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the items listed in Conclusion of Law 5 have been corrected by appropriate means 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.

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, August 11, 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).

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