ALJDEC decisions subject to certification as final

2010A-308477441-ROC · Registrar of Contractors · 2012-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2012

APPEARANCES: Complainant appeared on her own behalf, accompanied by consultant Eric Ibsen; no one appeared on behalf of Respondent.

WITNESSES: Phil Coscia, ROC Inspector Joy Stokes Eric Ibsen, Contracting Consultant

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent regarding a residential remodeling project at Complainant’s home. The Citation and Complaint issued by the Registrar of Contractors (“ROC”) for this matter also alleges that Respondent failed to follow plans, specifications, or building codes, aided and abetted unlicensed contracting, and contracted beyond the scope of its license. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the ROC into the record. Complainant presented evidence and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations of the law and recommending revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of License No. B.172734-R, a general residential contracting license issued by the ROC. The license authorizes Respondent to operate as a general contractor for residential projects. Ronald Edmond Beattie is the Qualifying Party. 2. Respondent performed remodeling work for Complainant pursuant to a contract entered into in April 2010 as part of the City of Phoenix Housing Rehabilitation Program. Unhappy with the work, Complainant filed a complaint with the ROC in December 2010. ROC Inspector Phil Coscia performed an initial inspection of the site on January 11, 2011, and issued a Corrective Work Order (“CWO”) on January 24, 2011. 3. Complainant then filed two additions to her complaint, adding more items for inspection. Inspector Coscia issued two more CWOs. The final CWO, issued October 19, 2011, includes all complaint items from both the initial complaint and the addenda. It lists 60 items, most of which called for corrective action, and some of which required no action. Inspector Coscia testified in support of the CWOs. 4. Complainant stated at the start of the hearing that she was not challenging any of the items for which no action was ordered. However, later in the hearing, she began to challenge one of the Inspector’s conclusions. 5. Inspector Coscia’s unchallenged testimony is found to be credible and entitled to substantial weight. Along with the workmanship problems noted in the CWOs, he testified that Respondent had not followed the plumbing specifications in the contract. Respondent had installed PEX piping (a plastic material) rather than copper as called for in the contract specifications. Item 29 of the October 2011 CWO ordered correction of that condition. 6. Inspector Coscia was asked at hearing about the allegations of Respondent’s aiding and abetting unlicensed contracting and operating beyond the scope of its license. He testified that he suspected that some of the workers used by Respondent were not employees or licensed subcontractors, but could not verify it. On the other hand, he testified that there were no written subcontracts for specialty trades such as plumbing and electrical work, as required by the ROC, leading him to conclude that Respondent had performed the work itself, outside the scope of its license.[1] 7. Inspector Coscia found that the floor and foundation for the addition in the rear of the home had been built many years before Respondent did its work, and had been built without a permit. He found that the supports for it were inadequate, but not due Respondent’s work. One of the issues raised in Complainant’s complaint is the sinking of the foundation in that area. Complainant believes that the foundation sunk when the substandard plumbing work that Respondent performed leaked inside a wall for a several weeks before the source was discovered and the leak stopped. Inspector Coscia disagrees. He acknowledged the plumbing leak, but gave his opinion that the faulty foundation condition was already present and was not caused by the leak. This opinion is also clearly expressed in Item 37 of the October 2011 CWO. Addressing that complaint item, stated as “Obvious floor shift from foundation movement,” Inspector Coscia wrote: The inspector has never found any evidence of failure of the original foundation for the home. However; as previously stated above: “the condition of the floor and foundation for the existing room addition on the rear of the home was constructed without a permit. The foundation and support of this floor is inadequate and in this inspector’s opinion is unrelated to the respondent’s work. No work related to this foundation was performed by the respondent at this location, nor does it appear that a water leak has compromised any footing or foundation of the home. No action is required by the contractor on either one of the above foundation complaints.

This conclusion also formed the basis of Inspector Coscia’s “no action” determinations for Items 21, 22, and 23. 8. Eric Ibsen testified on Complainant’s behalf about the foundation issue. To establish his qualifications, he testified that he worked for his family’s general contracting business in the State of Washington before coming to Arizona. He has also worked for contractors in Arizona for the last 10 years. Most recently, for about two years until October 2010, he was a field supervisor for Urban Energy Solutions, Inc., installing solar systems and energy management systems. He had knee surgery in October 2010 and has been unemployed since that time. He is helping Complainant without being paid, and he has been doing so even before she filed the initial complaint. 9. Mr. Ibsen testified that he observed cracking on the home that was indicative of a recent shift in the foundation of the home. However, he could not say whether there was a pre-existing problem with the foundation and to what extent the water leak caused damage. 10. Finally, Complainant submitted a written “construction forensics” report from MC2 Consultants, who performed an inspection at the request of Complainant’s insurance company. After conducting interviews, document review, and onsite inspections, MC2 Consultants concluded that “it is impossible to determine with certainty which cracks were present prior to commencement of the renovation project, which cracks occurred during the renovation project, and which cracks occurred during and/or after the plumbing leak.”[2] 11. Inspector Coscia’s determinations that were stated in the October 2011 CWO are supported by his observations and his testimony. The other evidence submitted about whether the water leak caused a foundation shift is not conclusive and is not sufficient to overturn Inspector Coscia’s testimony. Thus, Item 37 in the October 2011 CWO should remain a “no action” item. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (requires contractors to follow plans, specifications, and building codes), A.R.S. § 32-1154(A)(3) by way of Arizona Administrative Code (A.A.C.) R4-9-108 (prohibits poor workmanship), A.R.S. § 32-1154(A)(10) (prohibits aiding or abetting unlicensed contracting), A.R.S. § 32-1154(A)(17) (prohibits contracting beyond the scope of one’s license), and A.R.S. § 32-1154(A)(23) (requires compliance with a CWO). The evidence shows that Respondent has violated all but one of those provisions as the facts above show, the only exception being A.R.S. § 32-1154(A)(10), which was not verified by Inspector Coscia. 3. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC public website on March 28, 2012. That prior record shows that Respondent voluntarily cancelled the license on February 29, 2012, 10 days before the hearing. Pursuant to A.R.S. § 32- 1154(C), the cancellation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to further discipline the license. 4. The appropriate sanction in this matter is to revoke Respondent’s license. It is clear that Respondent has abandoned Complainant and its responsibilities as a licensed contractor. Complainant may file a claim with the Residential Contractors’ Recovery Fund. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.172734-R, held by B R Edmonds Enterprises, LLC, 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, March 28, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Items 56a and 58 in the October 2011 CWO. [2] The report is formatted as a letter to Traveler’s Insurance Adjustor Ed Urquides and is dated March 4, 2011. It was received by the ROC Legal Department on November 7, 2011. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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