ALJDEC decisions subject to certification as final

2011A-1189-ROC · Registrar of Contractors · 2011-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Michael Vingelli. The Respondent appeared through its authorized representative, Socorro Angulo. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-42 (No. 184165) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a residence located at 1350 S. La Canada Drive, Green Valley, Arizona. 3. Credible testimony and evidence established that as part of the purchase agreement, the prior owner agreed to remove and replace the roof on the Complainant’s new residence. 4. Credible testimony and evidence established that the prior owner then retained the Respondent to remove and replace the roof on the residence at issue. 5. The Complainant was dissatisfied with the Respondent’s workmanship on the roof of her new home and requested that the Respondent properly correct the deficiencies in the new roof. 6. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complain against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s roof. 8. The Respondent asserted that it should not be required to perform all of the items set forth in the Corrective Work Order because many of the items were not set forth in the Respondent’s written invoice to the prior owner. 9. Credible testimony and evidence established that the Respondent did not have a written contract with the prior owner of the residence and instead relied on the terms of the written invoice prepared by the Respondent. 10. Credible testimony and evidence established that the Respondent’s written invoice was prepared and signed solely by the Respondent. 11. Credible testimony and evidence established that the Respondent was retained through the Complainant’s purchase agreement to fully remove and replace the existing roof on the Complainant’s residence. 12. Credible testimony and evidence established that despite its disagreement with the terms of the Corrective Work Order, the Respondent did attempt to gain access to the Complainant’s roof in an attempt to comply with the Corrective Work Order. 13. Credible testimony and evidence established that the Respondent attempted to contact the Complainant by telephone and spoke with the Complainant’s son. The Complainant’s son indicated that the Complainant would not allow access to the Respondent unless the Respondent agreed to remove and replace the new roof on the Complainant’s residence. 14. Credible testimony and evidence established that the Respondent then made no further attempt to contact the Complainant in an attempt to gain access to the Complainant’s residence in order to comply with the terms of the Corrective Work Order issued in this matter. 15. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 16. When the Respondent failed to comply with the terms of the Corrective Work Order, the Complainant retained an independent roofing expert to inspect the roof on her residence. 17. The Complainant’s independent roofing expert then personally inspected the Complainant’s new roof and determined that there were so many deficiencies with the new roof that the entire roof should be removed and replaced. 18. Credible testimony and evidence established that the current roof on the on the Complainant’s residence fails to comply with applicable workmanship and industry standards and requires either extensive corrective work or complete removal and replacement. 19. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s roof fails to comply with applicable building code requirements. 20. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of performing corrective action and instead, allows the decision as to the method of performing the required corrective action to be made by the licensed contractor which makes such decision at its peril. 21. Credible testimony and evidence established that the Respondent’s choice of performing the required corrective action must fully comply with the terms of the Corrective Work Order issued in this matter. 22. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity after a hearing to correct any determined deficiencies in its construction work. 23. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of the new roof on her residence are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work on the Complainant’s roof. 24. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure or disregard of any building codes), A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). / / / / / /

RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent fully accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification.

Done this day, October 20, 2011.

/s/ M. Douglas 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