ALJDEC decisions subject to certification as final

2010A-9949179-ROC · Registrar of Contractors · 2011-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 24, 2011, at 1:00 p.m. APPEARANCES: Complainant David C. McElroy appeared on his own behalf; Respondent Charles William Godwin dba Sonoran Sunrooms of Arizona appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In January 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC228460, Class C-5 for residential prefab sunrooms, patio enclosures, and pergolas to Charles William Godwin doing business as (“dba”) Sonoran Sunrooms of Arizona (“Respondent”). 2. On or about March 26, 2009, Respondent cancelled his license. 3. On or about September 4, 2009, the Registrar received a complaint against Respondent from David C. McElroy (“Complainant”) that alleged that the roof panels had separated over the sunroom that Respondent constructed at Complainant’s residence at 4169 West Gary Drive in Chandler, Arizona. The Registrar designated Complainant’s complaint as Case No. 10-0994. 4. The Registrar’s inspector, Ted Gerold, performed a jobsite inspection in Case No. 10-0994. On September 22, 2009, Inspector Gerold issued a Corrective Work Order that required Respondent within fifteen calendar days “to determine cause of excess movement in the roof panels and correct.” 5. On or about December 8, 2009, the Registrar issued a Citation and Complaint in Case No. 10-0994, charging Respondent with violating A.R.S. § 32-1154(A)(23)[1] and (3), namely A.A.C. R4-9-108.[2] 6. Respondent failed to file a timely answer to the Registrar’s Citation and Complaint in Case No. 10-0994. 7. The Registrar redesignated Case No. 10-0994 as Case No. 2010- 9949179. On July 16, 2010, the Registrar issued a Decision and Order in Case No. 2010-9949179, finding that Respondent’s failure to timely answer the Citation and Complaint was deemed an admission of the charges contained therein under A.R.S. § 32-1155. The Registrar revoked Respondent’s license unless it accomplished the work described in Complainant’s complaint and the Corrective Work Order. The Registrar also required Respondent to pay a $500.00 civil penalty under A.R.S. § 32-1154(D). 8. On September 29, 2010, Complainant made a claim to the Residential Contractors’ Recovery Fund (“the Fund”) in the amount of $2,400.00 for the monies that he had paid to John Erickson of J C E Company, L.L.C., License No. ROC171687 (“J C E”), to perform the repairs that the Registrar had ordered Respondent to perform in Case No. 2010-9949179, because Respondent had failed to do so. 9. The Registrar revoked Respondent’s license for his failure to rectify the issues underlying the complaint, and on October 13, 2010, revoked Respondent’s license for his failure to pay the civil penalty imposed in Case No. 2010-9949179. 10. On March 11, 2011, the Registrar issued a Notice of Claim for Administrative Payout in Case No. 2010-9949179, informing the parties that “[a]fter a review of the claim and all supporting documentation, the Fund has determined that Complainant be awarded $2,400.00 in the form of a payment issued by the Fund.” (Emphasis in original.) 11. Respondent requested a hearing, and the Registrar referred Complainant’s claim to the Fund in Case No. 2010-9949179 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 12. A hearing was held on May 24, 2011. 13. Complainant submitted J C E’s proposal. Complainant testified that he contacted seven or eight contractors, but with the exception of J C E, they all declined to bid on the project because they were unfamiliar with the roofing system that was installed on Complainant’s sunroom. 14. Respondent testified that the problem with the roof is a result of a manufacturing defect and that although he contacted the manufacturer, the manufacturer had not made arrangements to repair the roof. Respondent argued that he should not be required to pay for any repairs. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] Complainant bears the burden of proof and must establish the amount of his compensable damages by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] The Registrar’s final decision in Case No. 2010-9949179 (former Case No. 10- 0994) established that Respondent violated A.R.S. § 32-1154(A)(23) and (3).

A contractor is responsible to a homeowner for the materials that the contractor uses in construction at the homeowner’s house, unless the homeowner has purchased the materials himself and provided them to the contractor for installation. In this case, Complainant did not provide the roofing system or recover anything from the manufacturer to repair the roofing system. Therefore, Complainant established that he is entitled to recover from the Fund the $2,400.00 that he paid J C E to repair the roofing system. RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar order the Residential Contractors’ Recovery Fund to pay $2,400.00 to Complainant David C. McElroy. It is further recommended that under A.R.S. § 32-1139(B), the Registrar charge $2,400.00, plus interest at a rate of ten percent a year, to Respondent Charles William Godwin dba Sonoran Sunrooms of Arizona’s License No. ROC228460. 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, June 9, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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.” [2] 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.” [3] See 32-1101 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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