ALJDEC decisions subject to certification as final

2010A-7100673-ROC · Registrar of Contractors · 2010-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 2010 APPEARANCES: Edward M. Sanchez appeared personally and he was represented by his attorney, Brian Henry, Esq. L E C Foresight Construction and Development, Inc. was represented by its attorney, Corey Foley, Esq. The Registrar of Contractors’ Residential Contractors’ Recovery Fund was represented by Assistant Attorney General Mary DeLaat Williams. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Registrar of Contractors (“Registrar”) is the administrator of the Residential Contractors’ Recovery Fund (“Fund”). 2. Qualified residential homeowners may be awarded payment from the Fund for damages caused by the act or omission of a properly licensed residential contractor. 3. Edward M. Sanchez (“Complainant”) is the owner of a residential property located at 18146 West Rancho Drive, Litchfield Park, Arizona (“Subject Residence”). 4. Complainant was the owner/builder of the Subject Residence. The project did not have a licensed general contractor. 5. L E C Foresight Construction and Development, Inc. (“Respondent”) was hired by Complainant to perform roofing work during the construction of the Subject Residence. Respondent performed, among other work, a torch down roofing application. 6. Complainant appeals the Fund’s denial of his claim for an administrative payout from the Fund for damages caused by Respondent. The Registrar designated Complainant’s appeal as Case No. RF10-0673, but later re-designated it as Case No. 2010-7100673 (hereinafter jointly referred to as “Case No. 2010-7100673”). 7. The basis for the Fund’s denial of Complainant’s claim was the determination that the requirements of A.R.S. § 32-1154(F) were not satisfied in the underlying disciplinary action between the parties in Case No. 09-0484, specifically, that Respondent’s contracting license number 189775 had not been revoked or suspended “as a result of an order to remedy a violation.” The Fund’s position is that Respondent’s contracting license was suspended for two days without any conditions imposed requiring remedial work to avoid that suspension. 8. In the underlying disciplinary action (Case No. 09-0484), the Registrar’s assigned inspector, Rick Oelke, issued a Corrective Work Order directing Respondent to timely perform remedial work to specified areas of its deficient roofing work. 9. A Corrective Work Order is not a final order from the Registrar. For example, page one of the Corrective Work Order contains the following language: FAILURE TO COMPLY MAY RESULT IN THE ISSUANCE OF A CITATION, SUSPENSION AND/OR REVOCATION OF YOUR LICENSE TOGETHER WITH CIVIL PENALTIES OF UP TO $500 FOR EACH VIOLATION. (Emphasis in the original.)

10. The Corrective Work Order advised Respondent that its contracting license could be suspended or revoked for failure to comply with the written directive pursuant to A.R.S. § 32-1154(A) (23). 11. The Corrective Work Order further advised Respondent that the Registrar could impose a civil penalty upon Respondent’s contracting license for its failure to comply with the written directive pursuant to A.R.S. § 32-1154(D). 12. The Corrective Work Order warned Respondent that “[a]n alleged violation of the above provisions may be charged along with any additional violations which may stem from the complaint that has been filed against your license if this matter goes to hearing.” 13. In Case No. 09-0484, Respondent was charged with violating the provisions of A.R.S. § 32-1154(A) (23). 14. Complainant had Respondent’s roofing work repaired by another contractor that included changing the roofing system from a torch down roof to a foam roof. Therefore, there was no longer any work for Respondent to be performed. 15. In Case No. 09-0484, Respondent was issued a civil penalty pursuant to A.R.S. § 32-1154(D). Respondent was not required to perform any roofing repairs to its workmanship to avoid the suspension or revocation of its contracting license because Complainant had already had another contractor perform roof work, including changing the roofing material to foam. Respondent’s contracting license was suspended for two days followed immediately by a period of probation. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent’s License No. 189775 was not revoked or suspended “as a result of an order to remedy a violation.” Therefore, the requirements of A.R.S. § 32-1154(D) have not been satisfied. RECOMMENDED ORDER Case No. 2010-7100673 shall be dismissed on the effective date of the Order entered in that matter. The Registrar’s denial of Complainant’s claim for an administrative payout from the Fund is upheld and affirmed. 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, November 24, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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