ALJDEC decisions subject to certification as final

2010A-4158661-ROC · Registrar of Contractors · 2010-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2010

APPEARANCES: Complainant appeared on her own behalf, accompanied by her boyfriend (who lives on the subject property) Rodrigo Carrizosa;[1] Respondent was represented by Qualifying Party Ruben Garcia.

WITNESSES: Greg Koeneman, ROC Inspector Blanca Tolano Rodrigo Carrizosa Ruben Garcia

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. 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 that Respondent has failed to perform in a workmanlike manner and has failed to comply with a Corrective Work Order. The Administrative Law Judge recommends that Respondent perform corrective work or have its license revoked.

FINDINGS OF FACT 1. Respondent is the holder of license B.180541-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. Ruben Encinas Garcia is the owner and Qualifying Party of the business.[2] 2. Respondent built Complainant’s home. In March 2010, Complainant filed a Complaint with the ROC, complaining about several items, including the grading and drainage of the property, “nail pops” in the drywall, and tile grout throughout the home in need of repair.[3] 3. ROC Inspector Greg Koeneman performed a jobsite inspection on March 25, 2010. Both parties were present and each complaint item was inspected. On March 29, 2010, Inspector Koeneman issued a Corrective Work Order (“CWO”) ordering Respondent to perform corrective work, including the grading (CWO item 1) and the tile grout throughout the house (CWO item 6). At hearing, Inspector Koeneman testified that the parties had established a verbal agreement at the jobsite inspection concerning the grading of the property. They both agreed that there was a drainage problem because the property did not drain water away from the house and to the street as was called for in the original drainage plan. They discussed a new plan for draining water to a retention area at the side of the property. Inspector Koeneman testified that Mr. Carrizosa agreed to provide Respondent with a rough drawing of where he and Complainant intended to place a concrete driveway and front walk in the future so that Respondent would be able to take that into account with the new grading plan. Inspector Koeneman testified that Respondent agreed to obtain the permits and engineering for the drainage plan after getting that rough drawing from Complainant. 4. Respondent denies that he agreed to do anything until he got a report from Complainant showing “elevations” of the property. He testified at hearing that he did not do any work on the grading because he was waiting for that information. 5. The record shows that Complainant complied with the condition set at the jobsite inspection by supplying Respondent with the rough drawing, a copy of which is part of the complaint file record. Three witnesses testified in support of Complainant’s understanding of the terms of the verbal agreement. Most importantly, Inspector Koeneman testified that the verbal agreement required that Complainant only provide the rough drawing. Respondent’s position regarding the grading is not supported by the evidence. Respondent failed to perform its part of the jobsite agreement. 6. With regard to the tile grout, Respondent performed corrective work upon issuance of the CWO. However, Inspector Koeneman testified that he performed a pre-hearing inspection of the corrective work on November 16, 2010, and found that the tile grout still did not meet minimum workmanship standards in a few areas because the color shading match was not satisfactory. Respondent testified that the shading is the best that can be done under the circumstances and that he can do no more. 7. The evidence supports a finding that the tile grout (CWO item 6) remains short of minimum workmanship standards and needs further repair. Respondent is required to make sure the grout meets minimum workmanship standards. 8. Finally, Complainant included in her ROC Complaint a complaint about what the Inspector called “nail pops.” He described these as common occurrences from settling of the house. He noted that the Workmanship Standards published by the ROC provide that contractors are required to correct this condition only one time during the first year of occupancy.[4] After that, it becomes a homeowner maintenance item. Respondent had already done a repair of that item during the first year. For that reason, Respondent was not ordered to correct that condition (CWO item 3) in the CWO. 9. Because the ROC’s written workmanship standards require only one correction the first year and Respondent has done so, Complainant’s challenge to the Inspector’s failure to order corrective work for that item fails. 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)(23), and (A)(3) by way of ROC Rule R4-9- 108.[8] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108, which prohibits poor workmanship. 3. For the reasons stated above, the evidence submitted shows violations of both subsections with respect to the grading and tile grout color. 4. A review of Respondent’s current license status shows that the license is suspended for lack of bond as of May 2010. 5. The appropriate sanction in this matter is to allow Respondent another chance to comply with the CWO by correcting the items. This will require Respondent to obtain a bond to lift the suspension. If Respondent does not do so in a timely manner, the license should be revoked. A civil penalty is also warranted. RECOMMENDED ORDER IT IS RECOMMENDED that license B.180541-R, held by Rugen Construction, LLC, be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that CWO items 1 and 6 have been corrected as noted above and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2010-4158661 (formerly T10-0415) shall be closed. IT IS FURTHER RECOMMENDED that, along with any above-provided penalties, Respondent pay a civil penalty of $150.00 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, December 6, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Because Mr. Carrizosa lives on the property, at hearing he was treated the same as Complainant. [2] Both the business and Mr. Garcia will hereinafter be referred to as “Respondent.” [3] There were other items (six altogether) in the complaint and subsequent CWO, but only three were presented for adjudication at the hearing. [4] Workmanship Standards for Licensed Contractors (February 2009) at 16, #2 (published by Arizona ROC). [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). [8] There is also a citation regarding the name Respondent has operated under, but that has been sufficiently addressed by a warning letter from the ROC.

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