ALJDEC decisions subject to certification as final

2010A-309871-ROC · Registrar of Contractors · 2012-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: January 23, 2012, at 1:00 p.m. APPEARANCES: Complainant Jorge Garcia appeared on his own behalf; Respondent Sara’s Construction, L.L.C. appeared through Ricardo Araiza Astorga, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In July 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.208794-R for residential general contracting to Sara’s Construction, L.L.C. (“Respondent”). On or about August 28, 2009, the Registrar received a complaint from Jorge Garcia (“Complainant”) that alleged 10 specific deficiencies in Respondent’s construction of Complainant’s new residence at 2170 East 15th Street in Yuma, Arizona. The Registrar designated Complainant’s complaint as Case No. Y10-0030. The Registrar’s inspector, Daryl McCloskey, performed a jobsite inspection in Case No. Y10-0030. On September 15, 2009, Inspector McCloskey issued a Corrective Work Order (“CWO”) to Respondent, requiring it within fifteen calendar days to correct by appropriate means certain workmanship deficiencies, in relevant part as follows: 1) Treat for termites around the house or provide proof of treatment. 2) The stucco that is loose around the front door. 3) The cracks in the stucco on the east and west outside wall[s]. 4) The loose blocks on the fence around the property. 5) Paint around the shower head in the hall bathroom. 6) The east wall in the living room . . . that is bowed out. 7) The crack in the rear sidewalk. Inspector McCloskey found that Respondent’s work complied with the Registrar’s standards in four of Complainant’s complaints.[1] On November 13, 2009, the Registrar issued a Citation and Complaint in Case No. Y10-0030, charging Respondent with violating A.R.S. § 32-1154(A)(23)[2] and (3), namely A.A.C. R4-9-108.[3] Respondent did not file a timely written answer to the Citation and Complaint. Therefore, on June 22, 2010, the Registrar issued a Default Decision and Order in Case No. Y10-0030, finding that by failing to file a timely written answer, under A.R.S. § 32-1155(B), Respondent admitted the charges contained in the Citation and Complaint. As a result of Respondent’s admitted violations, the Registrar required Respondent to pay a $250.00 civil penalty and ordered that on the effective date of the Default Decision and Order, Respondent’s license would be suspended until it submitted “proof that Respondent properly corrected the items involved and detailed in the Complaint and the Agency’s [CWO].” The parties subsequently submitted conflicting claims to the Registrar. The Registrar redesignated Case No. Y10-0030 as Case No. 2010-309871-ROC. On July 20, 2011, the Registrar issued an Order Setting Compliance Hearing in Case No. 2010-309871, stating that although Respondent paid the civil penalty and submitted a written statement to the Registrar claiming that all the items on the CWO had been corrected, Complainant requested that the Registrar keep his complaint open. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on the issue of whether Respondent had complied with the Registrar’s final Decision and Order in Case No. 2010-309871 (former Y10-0030). On January 23, 2012, a videoconference compliance hearing was held from the Registrar’s office in Yuma. Inspector McCloskey testified. Spanish interpreter Sylvia Gallegos provided translation for both parties and their witnesses. Complainant submitted six exhibits and presented the testimony of three witnesses: (1) himself; (2) his daughter, Iliana Garcia; and (3) his wife, Petra Alicia Garcia. Respondent submitted two exhibits and presented the testimony of two witnesses: (1) Ricardo Araiza Astorga, Respondent’s qualifying party and member; and (2) Armando Lopez, a member of Tornado Plastering, L.L.C., License No. K-36.234658-D (“Tornado”),[4] Respondent’s stucco subcontractor in the construction of Complainant’s residence. According to the Registrar’s website, Respondent’s license is current and in good standing. Complainant’s complaint appears to be the only complaint pending against the license. Hearing Evidence Undisputed Corrected Items Inspector McCloskey performed a prehearing compliance inspection on January 20, 2012, at 9:00 a.m. Inspector McCloskey testified that the paint around the shower head in the hall bathroom, Item No. 5 on the CWO, had been corrected, but that due to the length of time that had passed since the correction, the area was again showing signs of water penetration. Inspector McCloskey testified that due to the location of the repair, he believed that the homeowner was responsible for maintaining the area. Inspector McCloskey testified that Complainant said that Respondent repaired to his satisfaction the bow in the east wall in the living room, Item No. 6 on the CWO. Inspector McCloskey opined that Respondent’s correction of the crack in the rear sidewalk, Item No. 7 on the CWO, complied with the Registrar’s standards. Complainant did not challenge Inspector McCloskey’s testimony that Respondent had adequately corrected CWO Item Nos. 5, 6, and 7. Termite Treatment (Item No. 1 on the CWO) Complainant submitted into evidence photographs of the residence that were taken in November 2008, showing termite activity at the residence. Both parties submitted documentation showing that on August 21, 2008, Ortiz Pest Control[5] performed a pretreatment for wood-destroying pests or organisms on the soil where Respondent would construct the slab and footings for Complainant’s residence pursuant to its contract with Respondent. The documentation also showed that Ortiz Pest Control issued a five-year warranty for the pretreatment. Both parties agreed that after Inspector McCloskey issued the CWO, Ortiz Pest Control drilled holes in the slab of Complainant’s residence and treated the structure for termites. Inspector McCloskey testified that he saw no sign of termite activity at his prehearing inspection. Complainant testified that he believed that Respondent should have had the entire lot where the residence would be built pretreated for termites. Complainant also testified that the early appearance of termites at the residence made him concerned about what the condition of the residence would be in ten years. The Loose Stucco around the Front Door (Item No. 2 on the CWO) Inspector McCloskey testified that at his prehearing inspection, the loose stucco around the front door had been corrected, but that because there was overspray on the door trim, the correction did not meet the Registrar’s standards. Respondent did not challenge Inspector McCloskey’s testimony about its failure to fully correct Item No. 2 on the CWO. The Stucco Cracks on the East and West outside Walls (Item No. 3 on the CWO) Inspector McCloskey testified that at his prehearing inspection, the cracks in the stucco on the east and west outside walls of the residence had been repaired, but that some cracks were starting to show through again. Inspector McCloskey testified that because the repairs should have lasted longer, he does not believe that Respondent complied with the Registrar’s standards for stucco repair. Mr. Araiza Astorga testified that there was only one small crack in the stucco and that the crack was not wide enough to insert a coin into it.[6] Mr. Lopez testified that when Tornado corrected the stucco, Complainant had leaned “a lot of things” against the stucco. Miss Garcia denied that anything was ever leaned against the stucco. Mr. Lopez also testified that Complainant constructed a sidewalk next to the house, causing the house to settle and the stucco to crack. Miss Garcia testified that the stucco has been cracked since it was applied in August 2009. Photographs that Complainant submitted showed that the new sidewalk was several feet away from the house’s foundation. The Loose Blocks on the Fence around the Property (Item No. 4 on the CWO) Inspector McCloskey testified that at his prehearing inspection, the fence had been repaired. Inspector McCloskey testified that the fence was constructed of 4” blocks and was 5’ tall, and that due to the method of construction, the fence was “not the most sturdy wall.” Inspector McCloskey testified that although a few blocks on the fence were still “a little loose,” the fence was within the Registrar’s standards for the size of the fence. Complainant submitted photographs of the fence, showing some imperfections in the grout width and block alignment. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[7] Respondent bears the burden of proof to establish by a preponderance of the evidence that it complied with the Registrar’s final Default Decision and Order in former Case No. Y10-0030 (current Case No. 2010-309871).[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] Respondent established that an appropriately licensed company applied a pretreatment to the pad for the house before it was constructed. The Office of Pest Management (“OPM”) is the agency that regulates termite pretreatments and treatments. The OPM only requires licensees to apply chemicals for “creation of a chemical barrier between the soil and the concrete floor of a structure,” not over the entire lot where the structure will be constructed.[10] The OPM also advises homeowners that termite activity post-treatment does not necessarily mean that the pretreatment was not done correctly.[11] Respondent also established that after termite activity was noted, Ortiz Pest Control fulfilled its statutory responsibility by retreating the residence and that there is no current evidence of a termite infestation. Therefore, Respondent established that it complied with the Registrar’s order to “[t]reat for termites around the house or provide proof of treatment” (CWO Item No. 1). If termites reappear within five years of Ortiz Pest Control’s pretreatment, Complainant’s remedy is to request Ortiz Pest Control to retreat Complainant’s house under its warranty. Respondent also established that it complied with the Registrar’s orders to correct in a professional and workmanlike manner “[t]he loose blocks on the fence around the property,” the “[p]aint around the shower head in the hall bathroom,” “[t]he east wall in the living room . . . that [was] bowed out,” and “[t]he crack in the rear sidewalk” (CWO Item Nos. 4, 5, 6, and 7). Respondent did not establish that it complied with the Registrar’s order to correct in a professional and workmanlike manner the stucco that was loose around Complainant’s front door (CWO Item No. 2) because Respondent left overspray on the doorframe. Respondent did not establish that it complied with the Registrar’s order to correct the cracks in the stucco on the east and west outside walls of Complainant’s residence (CWO Item No. 3) because at least one crack reappeared shortly after Respondent’s correction. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately suspend Respondent Sara’s Construction, L.L.C.’s License No. B.208794, and that the license remain suspended until Respondent has corrected Item Nos. 2 and 3 on the CWO issued in Complainant Jorge Garcia’s complaint in Case No. 2010-309871 (former Case No. Y10-0030). It is further recommended that if Respondent provides written evidence that is satisfactory to the Registrar that it has corrected in a professional and workmanlike manner the overspray on the frame of Complainant’s front door (CWO Item No. 2) and the stucco crack(s) on the east and/or west outside walls of Complainant’s residence, the Registrar reinstate Respondent’s license. 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 five days from the date of certification. Done this day, February 2, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The total of the number of items for which the CWO required action and the number of items for which the CWO did not require action exceeded the number of specific complaints because one of the complaints concerned painting in more than one location. The CWO required Respondent to correct paint around the shower head in the hall bathroom but did not require Respondent to correct paint on a door. [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [3] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [4] Tornado’s license was suspended for non-renewal on July 1, 2009, and expired on July 1, 2010. [5] Ortiz Pest Control is the holder of License No. 5388 issued by the Structural Pest Control Commission (“SPCC”) and currently regulated by the SPCC’s successor agency, the Office of Pest Management. [6] The Registrar’s workmanship standards provided that cracks up to 1/16” are acceptable. See Arizona Registrar of Contractors Workmanship Standards for Licensed Contractors at 35 (February 2009). [7] See 32-1101 et seq. [8] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). Respondent did not claim that Complainant denied it reasonable access to perform repairs. [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] See www.sb.state.az.us/PreHomeOwners.php. [11] The OPM website also provides the following question and response for consumers:

If my house is infested by subterranean termites, does that mean the treatment made before or during construction was not done correctly? Not necessarily. Termite treatments made before or during construction are not always 100% effective. Many factors can alter the effectiveness, such as: 1. The type of application equipment used 2. The soil type and soil moisture content 3. Soil settling under the slab 4. The weather conditions on the day of the treatment, or 5. Any disturbance of the chemical barrier Homeowners making cosmetic changes can inadvertently disturb and destroy the treated barrier.

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