ALJDEC decisions subject to certification as final

2010A-308476600-ROC-com · Registrar of Contractors · 2012-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2012, at 8:00 a.m. APPEARANCES: David Siegel (hereinafter “Complainant”) appeared on his own behalf. P and P Builders Inc (hereinafter “P and P”) appeared through its authorized representative, Robert Panter. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provides, in pertinent part, as follows: On or about October 7, 2011, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that the items listed in the Registrar’s November 29, 2010 Corrective Work Order had been corrected by appropriate means and in a workmanlike manner, with the exception of the pull-out cabinet for the bedroom closet. Respondent maintained that it consulted with several companies about the dimensions of the closet in bedroom number two and “all of them said they would not build a pull[-]out closet to fit the existing small closet because it would be unsafe and a pull[-]out closet of that size would weigh to [sic] much and hanging cloths [sic] on it would make it top heavy.” Respondent indicated that it discussed the possibility of constructing a different type of closet with Complainant, but Complainant refused any alternative option. The Registrar treated this submission as a Notice of Compliance. On November 22, 2011, the Registrar sent a copy of Respondent’s Notice of Compliance to Complainant, providing Complainant an opportunity to file a Response thereto. On or about November 29, 2011, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that the front door latch has been installed, the glass pane at entrance has been cleaned and re-caulked and screw heads have been recoated at the solar tube; however, Complainant listed the remaining items from the Registrar’s November 29, 2010 Corrective Work Order as not being done satisfactorily. Complainant provided that Respondent “agreed to design a pull-out furniture grade cabinet that would be easy to pull out by a seven year old girl. [Respondent] was unable to make this design work.” Complainant also stated that there were larger items that needed additional attention such as painting, windows, bricks/saw cuts, tile/grout and doors. Note: Complainant is advised that the Registrar will no longer accept any further addendums or amendments in this matter, Case No. 2010-[number redacted], as this matter has already been adjudicated, and the only issues remaining are compliance issues. However, Complainant may file a new Complaint with the Registrar addressing the new workmanship issues ultimately set forth in his November 29, 2011 written correspondence, so long as the filing is within the Registrar’s two (2) year statute of limitations. See A.R.S. § 32-1155(A). Upon review and consideration, and with good cause appearing, IT IS 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 complied with the terms of the Registrar’s June 24, 2011 Order, with the exception of the pull- out cabinet/closet, and whether an option that is an alternative to a pull-out cabinet/closet in bedroom two should be considered by the parties. If it is determined that Respondent has failed to comply with the terms of the Registrar’s June 24, 2011 Order and the corrective work performed is not in accordance with minimum workmanship standards and/or it is determined that Respondent’s failure to install the pull-out cabinet/closet in bedroom two was unreasonable or not in good faith, then Respondent’s KB-2.245496-D License shall be subject to the immediate imposition of discipline. If it is determined that Respondent complied with the terms of the Registrar’s June 24, 2011 Order and that its refusal to install the pull-out cabinet/closet was reasonable and justified in light of possible safety concerns and Complainant’s failure to agree to an alternative closet design was unreasonable, then this matter shall be closed and no discipline imposed upon Respondent’s KB-2.245496-D License. IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing. Note: Complainant is not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it complied with the terms of the June 24, 2011 Order, with the exception of the pull-out cabinet/closet, which by design, may pose a safety risk.

2. The assigned Agency Inspector, Richard Allen (hereinafter “Inspector Allen”) testified that he performed a pre-hearing compliance inspection on September 17, 2012. Inspector Allen testified that there is minor cracking in the caulking at the sliding glass door and at the windows. Inspector Allen stated that the caulking around the window on the door needs to be trimmed off. Inspector Allen testified that the rear porch requires further corrective work.[1] 3. Inspector Allen testified that there are still unacceptable gaps at the miter joints in the window casing in the kitchen. Inspector Allen stated that a spot on the furnace door needs to be cleaned-up and repainted.[2] 4. Inspector Allen testified that some of the tile grout in the shower in the master bath is missing. Inspector Allen stated that the missing grout requires correction.[3] 5. Inspector Allen testified that the east window in bedroom number two has a gap in the miter-joint that requires correction.[4] 6. Inspector Allen testified that a pull-out closet has not been installed in bedroom number two. Inspector Allen stated that a safe pull-out closet could be constructed and installed in bedroom number two.[5] 7. Inspector Allen testified that the pull-out closet could be reasonably done so that the pull-out closet can be safely pulled out “like a drawer in a kitchen.”[6] 8. Inspector Allen testified that there were gaps in the skylights that had still not been corrected.[7] 9. Inspector Allen’s testimony is found to be credible. 10. Complainant testified that terms of the Corrective Work Order and the Registrar of Contractors’ June 24, 2011 Order had not been fully complied with. Complainant stated that P and P spent no more than one hour performing corrective work at the rental residence at issue.[8] 11. Complainant acknowledged that he discussed the pull-out closet installation with P and P. Complainant stated that P and P decided that it could not make the pull-out closet installation work so no work was performed.[9] 12. Complainant testified that before the Corrective Work Order was issued, he had a brief discussion with P and P regarding an alternative design to the pull-out closet but that nothing was decided upon. Complainant denied that P and P sent an alternative design to him after the Corrective Work Order was issued.[10] 13. Robert Panter (hereinafter “Mr. Panter”) testified that he had difficulty reaching Complainant. Mr. Panter stated that he presented an alternative design solution to the pull-out closet to Complainant’s brother which was rejected by Complainant’s brother. Mr. Panter acknowledged that there are still a few items in Complainant’s residence that require corrective action. Mr. Panter expressed a willingness to perform the required corrective work.[11] 14. Mr. Panter testified that he did not believe that a pull-out closet could be safely installed in Complainant’s rental residence. Mr. Panter stated that he suggested to Complainant’s brother that P and P could remove space from the master bedroom closet and add space to the closet in bedroom number two. Mr. Panter testified that a pull-out closet would be unsafe and would not be functional for a child.[12] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and 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. There are numerous items of the Registrar of Contractors’ June 24, 2011 Order that have not been fully corrected. Credible testimony established that the pull-out closet can be constructed to operate in a safe and workmanlike manner. This Tribunal concludes that P and P’s failure to install the pull-out closet was unreasonable and that P and P failed to fully comply with the terms of the Registrar of Contractors’ June 24, 2011 Order. RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 2.245496-D of P and P be immediately suspended and that said license remain suspended until the Registrar of Contractors receives and accepts written proof that P and P has caused a properly licensed contractor of Complainant’s choice, at P and P’s sole expense, to fully comply with the terms of the Registrar of Contractors’ June 24, 2011 Order. It is further recommended that if P and P provides acceptable written proof that P and P has caused a properly licensed contractor, of Complainant’s choice and at P and P’s sole expense, to fully comply with the terms of the Registrar of Contractors’ June 24, 2011 Order, then the suspension of License No. KB-2.245496-D shall be lifted and this matter shall be closed. In the event of certification of this 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 the certification. Done this day, October 4, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/18/12 Hearing Record (hereinafter “H.R.”) at 11:00-16:07. [2] H.R. at 19:30-21:57. [3] H.R. at 21:58-23:24. [4] H.R. at 23:25-24:39. [5] H.R. at 24:40-25:37. [6] H.R. at 25:38-28:05. [7] H.R. at 41:15-41:37. [8] H.R. at 4`:38-55:28. [9] H.R. at 55:35-56:59. [10] H.R. at 1:02:00-1:07:20. [11] H.R. at 1:09:13-1:17:38. [12] H.R. at 1:17:39-1:34:35.

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