ALJDEC decisions subject to certification as final

2010A-729817-ROC · Registrar of Contractors · 2010-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2010 APPEARANCES: Complainant Maria Harrell; Tom Lopez for Respondent Visser Builders. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Visser Builders (“Visser”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT Visser is the holder of a Class B- license (No. 120856) issued by the Registrar of Contractors (“ROC”).[1] In September 2005, Complainant Maria Harrell contracted with Visser for Visser to construct a residence for Ms. Harrell on Bee Bonnett Court in Vail, Arizona. See Exhibit 1. Ms. Harrell contracted with Visser based upon Visser’s relationship with a friend of hers by the name of Jerry Weineke. Mr. Weineke had recently constructed a home and had used Visser for its construction. Ms. Harrell admired Mr. Weineke’s home and floor plan. Mr. Weineke offered to locate land for Ms. Harrell to purchase and arranged for Visser to construct the home in accordance with the plans used for the construction of his home. Construction commenced in February 2006. The construction of Ms. Harrell’s home passed final inspection in January 2008, and a Certificate of Occupancy was issued. On October 29, 2009, Ms. Harrell filed a complaint against Visser with the ROC alleging fourteen specific items of complaint. 6. ROC Inspector Mike Nieves investigated Ms. Harrell’s complaint. 7. On November 24, 2009, Inspector Nieves conducted a jobsite inspection at which only Ms. Harrell was present. 8. On November 24, 2009, following the jobsite inspection, Inspector Nieves issued a Corrective Work Order (“CWO”) under which the ROC gave Visser 20 days to take corrective action regarding all of the items of complaint. 9. On November 24, 2009, Ms. Harrell filed an addendum to her complaint alleging ten additional items of complaint. 10. On December 7, 2009, Inspector Nieves conducted a second jobsite inspection with regard to the addendum complaint items, at which only Ms. Harrell was present. 11. On December 7, 2009, following the second jobsite inspection, Inspector Nieves issued a second CWO under which the ROC gave Visser 20 days to take corrective action regarding all of the addendum items of complaint and an additional item of complaint added at the jobsite inspection. 12. On July 19, 2010, Inspector Nieves conducted a pre-hearing inspection at which only Ms. Harrell was present. Inspector Nieves testified that all items on both of the CWOs need to be addressed with the exception of the roof, as it has already been re-coated by another contractor hired by Ms. Harrell. Regarding the exterior paint, Inspector Nieves testified that the entire house needs to be re-painted as the stucco can be seen through the paint. Inspector Nieves testified that Visser’s work fell below minimum workmanship standards with regard to all items of complaint contained in the original complaint and the addendum thereto. 13. Ms. Harrell submitted photographs into evidence depicting the deficiencies in the kitchen countertops, the kitchen cabinets, the exterior painting, the bedroom door, the molding, the bathtub faucet, and the roof. See Exhibit 2.[2] CONCLUSIONS OF LAW In this proceeding, Ms. Harrell bears the burden to prove, by a preponderance of the evidence, that Visser is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(3), (A)(13), (A)(15), (A)(18), and/or (A)(23) as charged by the ROC in its Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Harrell met her burden of proof as to five of the ROC’s six charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for the “abandonment of a contract or refusal to perform after submitting a bid on work . . .” The Administrative Law Judge concludes that the credible evidence of record established that Visser failed to perform corrective work at Ms. Harrell’s home without legal excuse. Therefore, the Administrative Law Judge concludes that Visser is in violation of A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Visser with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the evidence of record, that Visser failed to perform portions of its work at Ms. Harrell’s home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Visser violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include its contracting license numbers, preceded by the letters “ROC” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Ms. Harrell did not address this alleged violation. However, the document to which Ms. Harrell referred as the contract and to which Mr. Lopez referred as a document required to secure Ms. Harrell’s construction loan, contains Visser’s license number preceded by the letters “ROC”. See Exhibit 1. In view of the foregoing, the Administrative Law Judge concludes that Visser did not violate A.R.S. § 32- 1154(A)(13). Under A.R.S. § 32-1154(A)(15), a contractor is subject to discipline for “acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” Ms. Harrell did not address this alleged violation. However, the document to which Ms. Harrell referred as the contract and to which Mr. Lopez referred as a document required to secure Ms. Harrell’s construction loan, contains the names “Visser Builders” and “Desert Star Design & Construction”. As such, the Administrative Law Judge concludes that Visser acted in the capacity of a contractor under its license, in a name other than as set forth upon its license. Therefore, the Administrative Law Judge concludes that Visser violated A.R.S. § 32-1154(A)(15). Under A.R.S. § 32-1154(A)(18), a contractor is subject to discipline for “contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” Ms. Harrell contracted with Visser in September 2005, construction commenced in February 2006, and was substantially complete in January 2008. A review of the ROC’s licensing records revealed that Visser’s Class B- license No. 120856 was canceled at some point and not renewed after March 31, 2007. As such, Visser contracted/performed work on Ms. Harrell’s home while its license was canceled, and then after it was not renewed. Therefore, the Administrative Law Judge concludes that Visser violated A.R.S. § 32-1154(A)(18). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that jobsite inspections by the appointed inspector for the ROC were held, pursuant to which the ROC issued Visser two CWOs directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Visser failed to comply with the directives contained in the CWOs, without legal excuse. Therefore, the Administrative Law Judge concludes that Visser violated A.R.S. § 32-1154(A)(23). Based on the foregoing, it is appropriate for the ROC to impose discipline against Visser’s Class B- license. Upon consideration of all of the facts and circumstances presented by this case, including Visser’s canceled license status, the Administrative Law Judge concludes that the ROC should revoke Visser’s Class B- license. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that Visser’s Class B- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided penalty, if any, that Visser pay the sum of $500.00 to the ROC by way of a civil penalty pursuant to A.R.S. ( 32-1154(D). The failure by Visser to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Visser’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Visser, as defined in A.R.S. ( 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. It is further recommended, in addition to the above-provided penalty, if any, that Visser pay the sum of $1,000.00 to the ROC by way of a civil penalty pursuant to A.R.S. ( 32-1154(E). The failure by Visser to pay the entire amount of the aforesaid civil penalty, on or before thirty days following the effective date of the Order entered in this matter, shall result in the automatic permanent revocation of Visser’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Visser, as defined in A.R.S. ( 32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the ROC’s official records revealed that Visser’s contracting license was voluntarily canceled. The official records do not indicate the date of the voluntary cancellation. However, the official records indicate that Visser’s license had been renewed through March 31, 2007. Such cancelled license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

[2] Unbeknownst to the Administrative Law Judge at the time of the hearing, Visser is a sole proprietorship. As such, only sole proprietor, Louis Visser, or an attorney licensed in the state of Arizona, is authorized to represent Visser in this administrative proceeding. The Administrative Law Judge inadvertently allowed Tom Lopez, Visser’s former Project Manager, to appear on behalf of Visser. Notwithstanding such error, the outcome of the hearing remains the same whether the testimony of Mr. Lopez is considered or stricken in its entirety. Mr. Lopez’s testimony is set forth as follows for completeness of the record: Mr. Lopez testified that he was employed by Visser for eighteen years and was Visser’s Project Manager for eight years, a position he held during the construction of Ms. Harrell’s home. Mr. Lopez currently works for the United States Postal Service. Mr. Lopez testified that the document to which Ms. Harrell refers as a contract was executed for the purposes of obtaining her construction loan, and that Visser’s contract was with Mr. Weineke, not Ms. Harrell. See Exhibit 1. However, Mr. Lopez acknowledged responsibility for the majority of the construction deficiencies as delineated in Ms. Harrell’s filed complaint and addendum thereto. Mr. Lopez attempted to shift partial blame for those deficiencies to Mr. Weineke, testifying that Mr. Weineke approved of Visser’s work. Specifically, Mr. Lopez testified that Mr. Weineke instructed Visser to install the island bar at the height at which it was installed, and that Mr. Weineke hired a plumbing contractor to install the bathtub faucet. Regarding the tile, Mr. Lopez testified that he advised Mr. Weineke that there were too many cracks in the foundation (the foundation was installed by another contractor hired by Mr. Weineke) that would cause movement in the tile, resulting in cracked tile. Therefore, Mr. Lopez contended that Visser should not be responsible for corrections to these items. Mr. Lopez acknowledged Visser’s responsibility for the roof deficiencies and the poor painting of the home. Mr. Lopez asserted that Visser did not perform the required corrective work because Ms. Harrell had failed to pay the full amount of the “general conditions” portion of the construction contract that the parties had agreed to reduce from approximately $22,000.00 to $12,000.00. Ms. Harrell paid a total of $6,000.00 of the $12,000.00 agreed upon price. Mr. Lopez testified that Ms. Harrell could use the funds that she failed to pay to Visser to make the necessary repairs. Mr. Lopez testified that Visser “gave up $10,000.00 to get $12,000.00 and only got [$6,000.00]”. The Administrative Law Judge finds, with regard to the tile, that the condition of the foundation in Ms. Harrell’s home was pre-existing and that Visser, by proceeding to install the tile, had effectively accepted the surface/condition of the foundation as being adequate to support its work, especially in light of the fact that Visser was aware of the existing imperfections in the foundation, as attested to by Mr. Lopez. Upon contracting to construct a home, and in conjunction therewith guarantee its workmanship, a contractor accepts the surface as being adequate to support its work.

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