ALJDEC decisions subject to certification as final

2010A-308476911-ROC · Registrar of Contractors · 2011-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2011 APPEARANCES: M. Marie Haven appeared personally. S P W Home Builders, Inc. was represented by its authorized representative, Steve Wassell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. S P W Home Builders, Inc. (“Respondent”) is the holder of License No. 200624, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. In January 2010, M. Marie Haven (“Complainant”) contracted with Respondent for remodeling work at her residence located at 545 W. Anson Smith Road, Kingman, Arizona. Complainant paid Respondent the total sum of $4,000.00 for Respondent’s work performed on the subject project. 3. On November 1, 2010, Complainant filed a written Complaint with the Registrar alleging 20 items of deficient workmanship by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Bill Redman, performed a jobsite inspection to view Respondent’s workmanship. As a result of that inspection, Inspector Redman issued a Corrective Work Order dated November 17, 2010, that required Respondent to timely perform the following remedial work: & 2. The respondent shall adjust all the cabinets [sic] doors so that same function as intended. Respondent shall pace [sic] bumpers on all doors. The warping is still with in [sic] tolerance, no doors need replacement do [sic] to warping at this time. 3. Determine the cause of the plumbing leaks and repair same in a workman like [sic] manner. 4. This covered under item ½ [sic] above. If the adjustment does not correct the problem we will revisit same. 5. Determine the cause of the roll out units not working and repair same as needed in a workman like [sic] manner. 6. Do [sic] to the fact that we do not have a contract it is up to me to decide how to precede [sic]. The respondent shall repair the wall and ceiling that was damaged by the removal of the old cabnets [sic]. 7. The contractor shall install the floor tile in the “gap” where the cabinets use [sic] to sit. The new tile shall match the existing tile as close as possible. 8. The contractor shall adjust the cabinet doors to line up with the drawers. 9[. T]he respondent shall determine the cause of the seams of the doors opening and repair same in a good and workman like [sic] manner. & 12.[1] Do [sic] to the fact that the dishwasher cannot be removed the cabinets are not functioning as intoned [sic]. The respondent shall raise the cabinets to allow removal of the dishwasher. 13. The base cabinet door next to the stove is operating properly as it opens to 90deg with out [sic] hitting the stove, no action required. 14. The respondent shall properly replace the base board [sic] in the bathroom. 15[.] The respondent shall replace the vanity doors with doors that the “hand grips” are not on top of the doors allowing water etc[.] to flow into the cabinet. 16. The cabinets are properly fitted[.] 17. The spray hose is properly installed, no further action required. 18. The respondent shall re finish [sic] all areas on the cabinets that have light or no finish. 19. The respondent shall properly trim the corner cabinet. 20. The respondent shall remove and replace the base cabinet door that was sanded against the grain. The new door shall match the existing color as close as possible.

5. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (3), namely A.A.C. R4-9-108, and (23). 6. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. On September 16, 2011, Inspector Redman performed a pre-hearing jobsite inspection. 8. At the hearing, Inspector Redman testified as to numerous Complaint items that have not been repaired by Respondent as required by the Corrective Work Order. 9. The evidence of record established that Respondent failed to comply with the Registrar’s Corrective Work Order. 10. After Respondent performed remedial work necessary for Complainant’s dishwasher to be removed, it was discovered that Respondent had “hard wired” the unit rather than installing an electrical outlet to plug in the dishwasher for power. Respondent is responsible for causing a properly licensed electrical contractor to properly install an electrical outlet and to rewire the dishwasher so that it can be plugged into the new socket. 11. Respondent failed to hire a properly licensed plumbing subcontractor to perform the plumbing scope of work on the subject project. Even if the individual who performed the plumbing work was an employee of Respondent, Respondent, as the holder of a Class B contracting license, may not perform plumbing work and is required to subcontract such work to a properly licensed plumbing contractor. 12. After Respondent made three attempts to repair the sink problems, Complainant hired Truelove Plumbing Co., Inc. (“Truelove”) to perform work necessary to remediate item 3 of the Corrective Work Order. Complainant paid Truelove the total sum of $449.86 for work that Respondent was responsible to have repaired. Complainant’s request for restitution from Respondent for that amount paid is supported by the evidence of record. 13. While there is credible evidence establishing that Respondent failed to comply with the Registrar’s Corrective Work Order, there is insufficient evidence to establish that Respondent abandoned the subject project. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. A.A.C. R4-9-103(B) sets forth the scope of a Class B license, which specifically requires, among other things, that electrical and plumbing work be subcontracted to an appropriately licensed contractor. 4. Complainant failed to sustain her burden of proving that Respondent abandoned her project in violation of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. The evidence of record does not support the charged violation. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The Registrar’s Corrective Work Order identified numerous workmanship deficiencies by Respondent. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with the Registrar’s Corrective Work Order. 7. The evidence of record supports a recommendation that Respondent pay restitution to Complainant in the total amount of $449.86, pursuant to A.R.S. § 32-1156.01, for Respondent’s out of scope plumbing work that Complainant had repaired. RECOMMENDED ORDER Respondent’s License No. 200624 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the following conditions: that Respondent has become fully compliant with the Registrar’s Corrective Work Order; that Respondent has caused a properly licensed electrical subcontractor to perform the electrical work described in Finding of Fact No. 10 above; and that Respondent has paid restitution to Complainant in the amount of $449.86. If the Registrar receives written proof that Respondent has fully complied with the above-described three conditions, on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves proof of such compliance, then the above-described license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 200624 shall be placed on probation for a period of one year commencing on the effective date of the Order entered in Case No. 2010- [number redacted] or the date on which the Registrar approves proof of Respondent’s compliance with the terms of the above-described three conditions, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 to the Registrar 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 Case No. 2010-[number redacted] shall result in the automatic revocation of Respondent’s contracting 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 addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $2,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period and only if no claims are then pending. 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, September 30, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Corrective Work Order did not address Complaint item number 11, which reads: “Cabinets should set on tile.”

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