ALJDEC decisions subject to certification as final

2011A-1100-ROC · Registrar of Contractors · 2011-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2011 APPEARANCES: Paula Corral Galindo appeared personally. Goldstein and Luera Construction, L.L.C. was represented by its authorized representative, Arthur Luera. 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. Goldstein and Luera Construction, L.L.C. (“Respondent”) is the holder of License No. 181357, a Class KB-1 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 22, 2011, Paula Corral Galindo and Victoria Corral (“Complainants”) filed a written Complaint with the Registrar alleging that Respondent failed to correct the roof deflection of Complainants’ residence located at 1602 W. Cocopah Street, Phoenix, Arizona. The Registrar designated the Complaint as Case No. 2011-1100. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection at Complainants’ residence. Respondent did not appear at the jobsite inspection. As a result of the jobsite inspection, Inspector Gerold issued a Corrective Work Order dated May 9, 2011,[1] that required Respondent to timely comply with the following: This contractor is to complete the project at 1602 W. Cocopah Phoenix, AZ 85007, per contract and all specifications. This contractor is to correct the following by appropriate means: 1) Any and all roof deflection 2) Ensure entire patio cover is built per local building code

4. The Registrar issued a Citation and Complaint in Case No. 2011-1100 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (1), (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2011-1100 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On September 21, 2010, the parties entered into a Rehabilitation Contract for the subject project that was to be funded by the City of Phoenix. 7. Pursuant to the Rehabilitation Contract, Respondent’s scope of work included specified roofing work, cabinet work, painting, plumbing, and electrical. 8. Article 10-Termination of the Rehabilitation Contract provides that the agreement may be terminated by Respondent as follows: a. By Contractor. If Owner has persistently failed to fulfill Owner’s obligations under Contract Documents with respect to matters important to the progress of Work, such as access to Project site or interference by Owner with the progress of Work. In the event that Contractor terminates Contract pursuant to this Article, Contractor shall be paid by Owner the value of all work and materials supplied to the date of the termination.

9. Respondent terminated the Rehabilitation Contract claiming that Complainants’ non-code compliant patio cover prevented Respondent from obtaining a building permit for the roofing scope of work. 10. At hearing, Complainants presented credible evidence that the patio cover issue did not prevent the necessary roof work to be performed. 11. At hearing, Respondent failed to present credible evidence that the City of Phoenix would not issue a building permit for the roof work because of Complainants’ covered patio. 12. Complainants have obtained a building permit for the covered patio. 13. Respondent is determined not to be responsible to “[e]nsure [that the] patio cover is built per local building code.” The patio cover was not within Respondent’s scope of work under the Rehabilitation Contract. The patio cover is the responsibility of Complainants. Therefore, Respondent is not responsible for such work under the Corrective Work Order. 14. Respondent failed to comply with the Registrar’s Corrective Work Order because Respondent failed to correct the deflections in Complainants’ roof. 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), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. Respondent’s basis for terminating the Rehabilitation Contract was that Complainants’ non-code compliant patio cover prevented Respondent from performing its scope of work. However, the evidence of record does not support that contention. Therefore, Respondent abandoned the subject project rather than terminating the Rehabilitation Contract for cause. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent failed to perform work necessary to correct roof deflections in Complainants’ roof in a workmanlike manner. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s written directive to repair the deflections in Complainants’ roof. However, Respondent is not responsible for ensuring that Complainants’ patio cover becomes compliant with local building code because such work was not within Respondent’s scope of work under the Rehabilitation Contract. RECOMMENDED ORDER Respondent’s License No. 181357 shall be suspended on the effective date of the Order entered in Case No. 2011-1100 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has complied with the Registrar’s Corrective Work Order insofar as it requires Respondent to correct the deflections in Complainants’ roof. If the Registrar receives written proof, and the Registrar approves such proof, that Respondent has complied with the Registrar’s Corrective Work Order insofar as it requires Respondent to correct the deflections in Complainants’ roof on or before the effective date of the Order entered in Case No. 2011-1100, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 181357 shall be placed on probation for a period of 180 days commencing on the effective date of the Order entered in Case No. 2011-1100 or the date on which the Registrar approves written proof with Respondent’s proper compliance with the terms of the Order entered in Case No. 2011-1100, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in Case No.2011-1100, shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, 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, September 16, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s authorized representative claimed that there were two written directives issued. However, Inspector Gerold testified that he recalled only one Corrective Work Order being issued. The Administrative Law Judge reviewed the Registrar’s electronic hearing record submitted to the Office of Administrative Hearings. That review located only the one Corrective Work Order.

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