ALJDEC decisions subject to certification as final

2010A-655198-ROC · Registrar of Contractors · 2010-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2010

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by owner and Qualifying Party Leann Thornton Sizemore.

WITNESSES: William Redman, ROC Inspector Kit Corson Leann Sizemore

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Kit Corson brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent Leann’s Fine Home Furnishings. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with pre-marked exhibits submitted by both parties. 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 several items need to be corrected *************. FINDINGS OF FACT 1. Respondent is the holder of a class B general residential contracting license (No. 112370) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Leann Sizemore is Respondent’s owner and Qualifying Party. 2. Respondent installed vinyl flooring in Complainant’s home, pursuant to a written bid verbally accepted by Complainant. Complainant was not satisfied with several aspects of the work and filed a complaint with the ROC that listed 12 items, ranging from poor cleanup by the workers, the condition of baseboards after the installation, the lack of transition strips, “divots” in the vinyl, and a mold smell. 3. After Complainant filed the ROC complaint, ROC Inspector William Redman inspected the jobsite, observed the 12 items, and ordered Respondent to make two corrections, one to the baseboards and the other to sliding closet door guides. Also, Respondent agreed during the inspection to have a manufacturer’s representative inspect the flooring with regard to the divots and determine if there was a manufacturer or installation defect. A Corrective Work Order (CWO) was issued. Although Respondent has been willing to complete the two corrective items ordered in the CWO, Complainant has denied access to Respondent for those repairs because she wants all the issues resolved first so that whatever work is needed can be done at one time, rather than during several visits. Complainant’s position is found to be reasonable, but it has prevented Respondent from performing the repairs ordered in the CWO. Thus, Respondent is willing to correct CWO items 2 and 12 when given access. 5. Inspector Redman and both parties testified at the hearing about the items in the CWO. Several of the items (4, 5, and 10) relate to the lack of installation of transition strips. At the beginning of the hearing, the parties argued about whether transition strips were part of the agreement. However, at the end of the hearing, Respondent agreed to install transition strips. That item is therefore resolved without further discussion. 6. The parties also agreed toward the end of the hearing as to how the baseboard repairs were to be done, with the use of quarter-round molding. 7. As for the divots in the vinyl, the evidence shows that a private inspector hired by the manufacturer inspected the floor and found no manufacturing or installation defects in the vinyl.[1] He concluded that the “divots” were scratches that may have been caused by furniture legs or rolling chairs without proper floor protection measures. Complainant argues that Respondent’s workers made the marks and Respondent denies it. 8. The evidence is not sufficient to show that Respondent’s workers made the marks and that, therefore, Respondent is responsible for correcting them. No action is required by Respondent regarding the “divots.” 9. The evidence does not support requiring any other corrections than those agreed to by Respondent and ordered in the CWO. 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 partially met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(2) requires that construction meet plans, specifications and building codes. 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. The evidence submitted shows violation of (A)(3). Respondent’s work did not meet minimum workmanship standards in two areas at the time of the inspection. 4. The evidence submitted DOES NOT show violations of (A)(2) or (A)(23). Respondent could not have complied with the CWO because she was denied access. 5. Respondent is found to have violated Arizona contracting statutes and is subject to disciplinary action. A review of current ROC records shows that Respondent’s license is active and in good standing. 6. The appropriate sanction in this matter is to allow Respondent to comply with the CWO and make the corrections she has agreed to make. If Respondent does not do so in a timely manner, her license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 112370, held by Leann’s Fine Home Furnishings be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof of correction of the items described 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 suspension shall not take place and case 2010-655198 (formerly H10-0065) shall be closed.

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, August 10, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See the report from Inspect Solutions, Inc. at Exhibit R-5 through R- 12. [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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