ALJDEC decisions subject to certification as final

2010A-308477562-ROC · Registrar of Contractors · 2011-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife Dorothy Grusczynski; no one appeared on behalf of Respondent.

WITNESSES: Ted Gerold, ROC Inspector Gerald Grusczynski Dorothy Grusczynski

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 garage and driveway built by Respondent at Complainant’s home. As noted above, the Respondent partnership did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant presented evidence and testimony from himself, his wife, and Inspector Gerold. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violations of the law and recommending provisional revocation of the license and a civil penalty. FINDINGS OF FACT 1. Respondent is a partnership that is the holder of license B- 1.123479-C, a general commercial contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general contracting work on commercial properties, except for specialty areas such as plumbing, electrical, and other work that requires a specialty license. Harvey Stryken is Respondent’s Qualifying Party. The scope of the license does not include residential construction. 2. In March of 2010, Respondent entered into a contract with Complainant to build a garage and driveway at Complainant’s residence. Respondent did a poor job and Complainant filed an ROC complaint in October 2010. ROC Inspector Ted Gerold performed an onsite inspection in December 2010 with both Complainant and Respondent present. Based on that inspection, Inspector Gerold issued a Corrective Work Order (“CWO”) dated January 7, 2011 that identified eleven workmanship issues and ordered correction of eight of them. Respondent was required by the CWO to hire a properly licensed contractor to make the corrections since Respondent’s license does not allow Respondent to perform residential work. 3. At hearing, Complainant stated that Respondent had corrected one of the items (CWO item 7-garage windows) without hiring another contractor. The other seven items that needed correction were not repaired. Inspector Gerold testified that he did not perform a pre-hearing inspection because no work had been done on the seven items in dispute. He testified as to the poor workmanship that was evident on those seven items at his inspection in December 2010.[1] 4. Complainant’s evidence is uncontested. 5. The evidence shows that Respondent did not build in a workmanlike manner and operated outside the scope of its license. / / / / / / / / / CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (prohibits failure to follow plans, specifications, or building codes), (A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), (A)(17) (knowingly contracting outside the scope of the license), and (A)(23) (requires compliance with a CWO). The evidence shows that Respondent has violated those provisions. 3. A review of current ROC records shows that Respondent’s license is suspended for lack of bond since May 28, 2011. Pursuant to A.R.S. § 32- 1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 4. The appropriate sanction in this matter is to allow Respondent a final opportunity to hire an appropriately licensed contractor to make the corrections. If Respondent does not do so, its license should be revoked. Also, a substantial civil penalty is warranted for failure to comply with the CWO. RECOMMENDED ORDER IT IS RECOMMENDED that license B-1.123479-C, held by Paul Volkmair Stryken and Harvey Lawrence dba J and S Development Enterprises be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that the seven CWO items discussed above have been corrected by an appropriately licensed contractor and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides the written proof described above on or before the effective date of the Registrar’s Order, license revocation shall not take place and case 2010-[number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanctions provided above, Respondent Paul Volkmair Stryken and Harvey Lawrence dba J and S Development Enterprises, pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, October 17, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The seven items are CWO items 1, 2, 3 (contingent on local building code requirements), 4, 5, 6, and 8. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] 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