ALJDEC decisions subject to certification as final

2010A-308476848-ROC · Registrar of Contractors · 2011-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by attorney Randy Alcorn, accompanied by Senior Vice President Jim Carlson.

WITNESSES: Greg Koeneman, ROC Inspector Tia McKay James Taylor, “handyman” hired by Respondent Jim Carlson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship. The Registrar of Contractors has issued a Citation and Complaint that cites poor workmanship and also alleges that Respondent performed work while on a suspended or inactive license. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibits A through H (photographs) submitted by Complainant and Exhibits 1 through 3 submitted by Respondent. The parties presented evidence and testimony 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 violation of the law and recommending revocation. FINDINGS OF FACT 1. Respondent is the holder of license B.168846-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. The license was revoked in January 2010. 2. In September 2009, Complainant bought a spec home from Respondent. In August 2010, she complained to Respondent about specific items in the home in an 8-item list she sent to Respondent.[1] In response, Respondent sent James Taylor to the property to look at the items and make repairs as needed. He did some minor repair work.[2] 3. In October 2010, Complainant filed a complaint with the ROC. No jobsite inspection was performed because Respondent’s license had been revoked and Respondent could not do any corrective work or hire others to do so.[3] The complaint lists eight items that concern six issues: 1) roof leaking small amounts when it rains; 2) window at stair landing leaking when it rains; 3) upstairs bathroom tub leaks through first floor ceiling vent below it, causing damage to ceiling and wall; 4) master bath toilet pedestal leaks; 5) sliding glass door latch not working and track is bent; and 6) not given appliance warranty paperwork for microwave and stove. 4. At hearing, Complainant submitted Exhibits A through H which are photographs taken in March 2011 and show the water damage described in the items above. 5. Respondent presented testimony from James Taylor, an experienced contractor who is not licensed but did repair work at Complainant’s home on behalf and at the direction of Respondent in August 2010. Respondent’s license was revoked at the time. Mr. Taylor testified that he was paid for the work directly by Respondent. 6. The evidence shows that Respondent engaged in contracting while its license was revoked. 7. The evidence supports Complainant’s claim that the six items listed above in Finding of Fact 3 do not meet minimum workmanship standards and need correction by a licensed contractor.[4] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship) and (A)(18) (prohibits contracting with a suspended or inactive license). 3. The evidence does not show that Respondent engaged in contracting on a suspended or inactive license. Respondent’s license had been revoked in August 2010 when it directed Mr. Taylor to do the repair work. Therefore, Respondent engaged in contracting without a license rather than on a suspended license. But, the evidence does show that Respondent failed to meet minimum workmanship standards. The items listed above need to be corrected. 4. Based on the findings and conclusions, Respondent’s license should be revoked for this case. Complainant may make a claim with the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that license B.168846-R, held by US Builders LLC dba Nicholas Homes Contracting, be revoked.

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 10, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 2. [3] See warning letter from ROC Inspector Greg Koeneman issued November 17, 2010. [4] Jim Carlson’s testimony was speculative and is given no weight. [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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