ALJDEC decisions subject to certification as final

2011A-1090-ROC · Registrar of Contractors · 2011-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2011

APPEARANCES: Jill Duckett appeared for Complainants; Respondent was represented by Managing Member and Qualifying Party Brent Monroe.

WITNESSES: Jim Hennessy, ROC Inspector Jill Duckett Brent Monroe

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring 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. At the beginning of the hearing, the Administrative Law Judge ruled that items 2, 9, 10, 11, 12, 13, and 14 of the Corrective Work Order (“CWO”) in this matter were not at issue for various reasons. Items 2, 9, 10, 11, and 12 were ruled to be precluded because they were adjudicated in another complaint filed by Complainants against Respondent, Case No. 2010-[number redacted]. CWO items 13 and 14 have been modified by another and, therefore, according to A.R.S. § 32-1155(C), a citation cannot be issued alleging poor workmanship or failure to follow building code. Thus, only CWO items 1, 3, 4, 5, 6, 7, and 8 are herein adjudicated. The parties presented evidence and testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent must perform corrective work or have its license suspended.[1] FINDINGS OF FACT 1. Respondent is the holder of license B-3.203111-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general remodeling and repair for residential projects, excluding certain specialty areas. Brent Monroe is the Qualifying Party. 2. In February 2011, Complainants filed a complaint with the ROC against Respondent, alleging poor workmanship with regard to work that Respondent had preformed during a remodel of Complainants’ house. This is the second complaint filed by Complainants against Respondent regarding the job. The first was adjudicated as Case No. 2010-[number redacted]. 3. ROC Inspector Jim Hennessy inspected the complaint items and issued a CWO on April 7, 2011. Seven of those items were at issue at the hearing held in this matter on November 21, 2011. Inspector Hennessy found that work needed to be done on those seven items, described below, and that work remains to be done to correct them. The Inspector’s conclusion and testimony are found to be credible and are accepted by this tribunal. 4. CWO Item 1 concerns a junction box in the attic that needs to be evaluated by an electrician for possible overload. Complainants describe it as follows: “Review the attic electric work to be sure the 3-4 junction boxes added under [Respondent’s] remodeling job are safe and properly installed; reimburse [Complainants] for the Efficient Electric bill to separate the circuits.” Of course, this will have to be performed by a licensed electrician, since Respondent’s license excludes electrical work. In addition, the evidence shows that the junction box installed by Respondent was a hazard and that Complainants had to have an electrician perform emergency repair at a cost of $137.50 to Complainants. Respondent is responsible for that cost. 5. The other CWO items relate to doors, carpet, electrical outlets, a smoke detector, and door casings. Again, Complainants have identified the corrective work that needs to be done: – Replace pantry & master bedroom doors

– Stretch and secure new carpet installed in office, living room and master bedroom

– Replace receptacles and switches in 2 guest bedrooms

– Add outlet on patio and one in office

– Move smoke detector in hallway

– Soften casing edges and refinish with “varnish” specified by Complainants

This tribunal finds that the corrective work listed above is necessary and that Respondent is responsible for completing it, but has not yet done so. 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, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainants have met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (requires contractors to follow plans, specifications and building codes), (A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), (A)(23) (prohibits failure to comply with an ROC Corrective Work Order).[5] 3. The evidence shows that Respondent has violated the cited provisions. 4. The appropriate sanction in this matter is to allow Respondent to perform the corrective work identified above in Findings of Fact 4 and 5. If Respondent does not make those corrections in a timely manner, the license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.203111-R, held by Sun City Restoration, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the items listed in Findings of Fact 4 and 5 have been corrected by appropriate means 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 2011-1090 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, December 12, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] On December 5, 2011, this tribunal received a copy of correspondence from Complainants to Respondent which listed and detailed the corrective work that Complainants are seeking to have Respondent perform. Except for item 8 on that list (gurgling sound and water backing up in drain), the list is accepted into evidence and will be used as the basis for Complainants’ requested work. Item 8 on the list corresponds to CWO items 9, 10, 11, and 12, which have been ruled to have been decided in the prior complaint referenced above. [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). [5] A.R.S. § 32-1154(A)(17) (prohibits working outside the scope of a license) was also cited, but that violation has already been upheld in Case No. 2010-[number redacted] for the same work.

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