ALJDEC decisions subject to certification as final

2010A-308476228-ROC-com · Registrar of Contractors · 2012-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2012, at 1:00 pm. APPEARANCES: Complainant appeared on her own behalf. Respondents appeared through their authorized representative, Forest Lee Wright. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ These matters came on for a consolidated Compliance Hearing. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made:

FINDINGS OF FACT 1. Respondent Wright Built LLC is the holder of License No. B.212592-R issued by the Registrar of Contractors. 2. Respondent Built Wright Homes Inc is the holder of License No. B.258318- R issued by the Registrar of Contractors. 3. The Order Reopening Complaint and Setting Compliance Hearing for these matters provides, in pertinent part, as follows: On August 18, 2011, the Registrar issued an Order of Closing in these matters in accordance with the Administrative Law Judge’s Order Vacating Hearing Due to Settlement. On or about December 7, 2011, Complainant submitted a Request to Reopen these matters with the Registrar providing, among other things, that Respondents “had six months to make repairs to the required specifications as outlined in the hearing documents. [Respondents] [have] failed to make the repairs and failed the deadline.” On January 24, 2012, the Registrar sent a copy of Complainant’s Request to Reopen to Respondents to give Respondents an opportunity to file a Response thereto. On or about January 31, 2012, Respondents submitted written correspondence in this matter with the Registrar maintaining, among other things, that it appears the issues experienced by Complainant at her residence may be due to unstable soils. Respondents provided that they had retained an engineering contractor to develop a remediation plan. Respondents further provided that they would like the opportunity to perform corrective work in this matter. Upon review and consideration of Complainant’s Request to Reopen, and Respondent’s Response thereto, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that Case Nos. 2010-[number redacted] and 2011-1717 be REOPENED. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Tucson area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct constituting violations of A.R.S. § 32-1154(A)(23) and (3) as set forth in the Citation and Complaint and/or breached the terms set forth in the parties’ Settlement Agreement. If the assigned Administrative Law Judge recommends that discipline is to be imposed upon Respondent’s License, and the Registrar adopts such recommendation, the discipline may be impose immediately, based upon a finding that in addition to any violation of contracting laws that have been committed by Respondent, Respondent further breached the parties’ Settlement Agreement.[1]

4. The terms of the Settlement Agreement, as set forth in the June 1, 2011 Order Vacating Hearing Due to Settlement, are as follows: a. Respondents accept full liability for the defects in the home; b. Respondents will pay Complainant’s monthly mortgage payment in the amount of $1,500.00, and for all utilities for the home, for a period of six months; c. The six month period will commence on June 1, 2011, and end on December 1, 2011; d. Respondents will pay directly to Complainant the monthly mortgage amount of $1,500.00 by the 25th day of the previous month; e. Utilities will be changed into a Respondent’s name for the six month period of time; f. Complainant will move out of the home for that six month period of time; g. Respondents will schedule a meeting with Copper State Engineering and Arizona Ram Jack, at a mutually agreeable time for all parties involved, in order to determine the appropriate and necessary remedial action to be taken to address the foundation problems with the home; h. Once the deficiencies with the foundation of the home are identified, Respondents will repair those deficiencies in an appropriate, workmanlike manner, as well as repair the interior of the home to the new home specifications; i. Once the repairs are made, the home will be inspected by the municipality’s inspector, and the parties will request an inspection to be conducted by the Registrar of Contractors to ensure compliance with the Corrective Work Order issued in this matter and Respondents and Complainant will meet on a weekly basis at a mutually convenient time at Complainant’s home for a status meeting. j. Respondents and Complainant will meet on a weekly basis at a mutually convenient time at Complainant’s home for a status meeting.[2] 5. Arizona Ram Jack surveyed Complainant’s residence and prepared a written Manometer Survey Report that included specific recommendations regarding the proper correction of the underlying problems with Complainant’s residence.[3] 6. Copper State Engineering, Inc. performed a Forensic Geotechnical Investigation of Complainant’s residence and provided the parties with a written report including specific recommendations for grading, drainage, and other moisture control measures for Complainant’s residence. [4] 7. Respondents’ authorized representative, Forest Lee Wright, acknowledged that Respondents had not fully complied with the recommendations of Copper State Engineering, Inc.[5] 8. The October 15, 2010 Corrective Work Order issued in Case No. 2010- [number redacted] and the February 28, 2011 Corrective Work Order issued in Case No. 2011-1717 provide, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1. Interior of home is cracked, with gaps up to 1” wide on just about every was, joint and seam: There is separation of the drywall joints between the ceiling and walls in the kitchen, living room and hall, doors have drywall cracks at the corners and drywall seams are visible throughout the home, needs to be to be properly repaired and painted to match existing as close as possible. 2. Ceramic tile has popped up and/or cracked in kitchen/dining area, entry way and laundry room: Numerous tiles are causing a tripping hazard or are cracked throughout the home. 3. All grout is cracked and chunking in some areas: Grout is cracked and crumbling throughout the floor. 4a. All closet doors in home will not close properly: Doors do not properly open or close [sic]. 4b. Door casings have dropped ¾” – 1”: Casing needs to be properly corrected. 5a. All doors in home will not close properly: Doors do not properly open or close [sic]. 5b. Door casings have dropped ¾” – 1: Casing needs to be to be properly repaired and surrounding damage needs to be properly repaired and painted to match existing [sic] as close as possible. 6. Outside stucco cracked: Numerous cracks do not meet the standards, needs to be repaired and painted to match existing as close as possible. 7. Garage door broke and builder was supposed to replace panel: Panel is damaged due to pivot arm separating from panel causing damage. 8. Builder was supposed to install rain gutters: Gutters need to be installed. 9. Builder was supposed to fix cut area of stucco outside: Stucco at entry way roof area needs to be repaired and painted to match existing as close as possible. 10. Builder was supposed to move back outside faucet away from house: Faucet needs to be placed in correct location. 11. Builder was supposed to pour concrete in front side walk: Area between sidewalk and garage needs to be filled in. 12. Outside bathroom window trim is still missing: Trim around window needs to be installed. 13. Builder attempted to repair cracks and door issues in March of 2010: Doors need to function correctly and surrounding damage needs to be properly repaired and painted to match existing as close as possible. 14. Home is below grade: Sufficient drainage away from home needs to be provided. 15. Tile in tub of master bedroom bath is cracked in grout and tile: Numerous tiles need to be replaced and grout repaired. 16. Main bathroom has small holes in wall and ceiling: Nail pops need to be repaired and painted to match existing as close as possible. 17. Hallway ceiling has cracking: There is separation of the drywall joints between the ceiling and walls in the hallway, needs to be properly repaired and painted to match existing as close as possible. 18. Bathroom has grout cracking in shower: Grout is cracked and needs to be properly repaired. 19. Entry way leading into home is cracking outside: Stucco cracks along the ceiling and wall joints do not meet the standards, needs to be properly repaired and painted to match existing as close as possible. 20. Cracking in garage floor: Several cracks do not meet the standards. 21. Cracking on back porch: Stucco cracks along the ceiling and wall joints do not meet the standards, needs to be properly repaired and painted to match existing as close as possible.[6] 9. The assigned Agency Inspector testified that he conducted an on-site pre- compliance hearing inspection and observed that nine (9) items of the Corrective Work Orders were still at issue. The Agency Inspector testified that all nine of the items remaining at issue required further corrective action by Respondents.[7] 10. Complainant’s brother, Randy Lee Welch of R M K A Construction Development LLC, testified that Respondents had failed to fully follow the recommendations prepared by Copper State Engineering, Inc. and Arizona Ram Jack and that the Respondents had failed to fully comply with the terms of the Corrective Work Orders. Mr. Welch testified that he witnessed the repairs being done and observed Respondents’ workers placing drywall mud into gaping cracks in the drywall and ceilings without actually doing anything to reattach the walls and ceilings. Mr. Welch opined that simply filling large cracks and taping and texturing over the repairs was not a code compliant repair because the drywall was no longer properly attached to the framing.[8] 11. Complainant’s husband, Chad Lee, testified that Respondents had failed to fully comply with the terms of the parties’ Settlement Agreement.[9] 12. Complainant testified that Respondents had failed to comply with the terms of the parties’ Settlement Agreement and that it seemed like a “never ending” situation where Respondents would only perform when under immediate pressure and that Complainant’s residence is still under construction.[10] 13. Respondents’ representative, Forrest Lee Wright, stated that Complainant had been “very, very” patient and admitted that Respondents had worked on Complainant’s residence for “the last year or so.” Respondent acknowledged that there was still corrective work to be performed on Complainant’s residence.[11] 14. Respondents’ actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the parties’ Settlement Agreement and the two Corrective Work Orders. On the contrary, credible evidence established that Respondents have repeatedly failed to properly accomplish compliance with the terms of the two Corrective Work Orders and that Respondents have failed to fully comply with the terms of the parties’ Settlement Agreement. Respondents’ efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the parties’ Settlement Agreement. 15. Under all of the salient facts and circumstances presented herein, these Respondents 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 Respondents to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondents cause another properly licensed contractor of Complainant’s choice, and at Respondents’ expense, to fully comply with the terms of the parties’ Settlement Agreement and the two Corrective Work Orders. 16. Administrative notice is taken of the prior license record of License No. B.212592-R of Wright Built LLC as reflected on the Registrar of Contractors’ public website on June 18, 2012. Such prior License record reflects that said license was voluntarily canceled on September 14, 2009. 17. Administrative notice is taken of the prior license record of License No. B.258318-R of Built Wright Homes Inc as reflected on the Registrar of Contractors’ public website on June 18, 2012. Such prior license record reflects that said license is 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 an the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence presented during the compliance hearing supported findings which establish that Respondents failed to fully comply with the terms of the parties’ Settlement Agreement. 4. Credible testimony and evidence presented during the compliance hearing supported findings which establish that Respondents failed to comply with the terms of the two Corrective Work Orders issued in these matters. 5. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate disciplinary action against the contractor’s license. 6. Credible testimony and evidence supported findings which establish that Respondents violated the charged provisions of 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 on compliance hearing

No. 2010A-[number redacted]-ROC-com

In view of the foregoing it is recommended that License No. B.212592-R of Wright Built LLC shall be revoked unless the Registrar of Contractors receives, and accepts, written proof that said Respondent has caused a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the parties’ Settlement Agreement and the Corrective Work Order. It is further recommended that if Respondent causes a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the parties’ Settlement Agreement and the written Corrective Work Order, on or before the effective date of this Order, then the above provided license revocation shall not take place and that 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.

No. 2011A-1717-ROC

In view of the foregoing it is recommended that License No. B.258318-R of Built Wright Homes Inc. shall be revoked unless the Registrar of Contractors receives, and accepts, written proof that said Respondent has caused a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the parties’ Settlement Agreement and the Corrective Work Order. It is further recommended that if Respondent causes a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the parties’ Settlement Agreement and the written Corrective Work Order, on or before the effective date of this Order, then the above provided license revocation shall not take place and that 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 these Orders will be 40 days from the date of the certification. Done this day, June 25, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Order Reopening Complaint and Setting Compliance Hearing. [2] June 1, 2011, Order Vacating Hearing Due to Settlement. [3] Exhibit No. C-10 (November 2, 2010, Manometer Survey by Arizona Ram Jack). [4] June 23, 2011 Forensic Geotechnical Investigation of Lee Residence by Copper State Engineering, Inc. Exhibit No.C-15. [5] 6-1-12 Hearing Record (hereinafter “H.R.”) at 2:24:00-2:37:11. [6] October 15, 2010 Corrective Work Order, Case No. 2010-[number redacted], at 1- 2, and February 28, 2011 Corrective Work Order, Case No. 2011-1717. [7] H.R. at 1:38:12-1:52:12. [8] H.R. at 59:22-1:34:18. [9] H.R. at 2:45:03-2:51:17. [10] H.R. at 2:51:23 to 2:55:07. [11] H.R. at 2:55:22-3:04:31

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