ALJDEC decisions subject to certification as final

2011A-1250-ROC · Registrar of Contractors · 2011-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Kayvan Sanaiha. 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 B (No. 104700) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant purchased a new residence constructed by the Respondent and that she closed escrow and began her occupation of the new residence on November 15, 2008. 3. The Complainant became increasingly dissatisfied with the Respondent’s workmanship and repeatedly requested the Respondent to perform corrective work on her residence. 4. When the Respondent failed to comply with all of the Complainant’s requests for additional corrective action, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Credible testimony and evidence established that the Complainant’s formal Complainant was received and date stamped by the Registrar of Contractors on February 22, 2011. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite of the Complainant’s residence on March 17, 2011. 7. The assigned Agency Inspector’s Jobsite Inspection Notes provide, in pertinent part, as follows: I explained that ROC has jurisdiction of 2 years from COE or occupancy, or 2 years from completion of repair work. Told both parties I will have jurisdiction on work done in last 2 years only. Complainant stated that some of this work contractor was notified earlier, I told her complaint needs to come into our office within that 2 year period. Complainant mentioned that she notified our office last year, I told her this is the only complaint I saw on our records with her and this contractor.

There was disagreement between complainant and respondent as to what work was done, and when work was done.

1) Complaint of: “Granite in kitchen around sink is rough as well as seal”, jobsite found only work done in last 2 years was buffing area right of sink, jobsite found area smooth, no action required.

2) Complaint of: “Paint touch up bathroom has mix of flat and gloss paint needs to be gloss”, jobsite found entire bathroom ceiling appeared to be painted with flat paint, no action required.

3) No work done in last 2 years, no action required.

4) No work done in last 2 years, no action required.

5) Complaint of: “Windows on back side of house, living rooms, dining room, all have cracks at corners”, jobsite found several hairline cracks at window corners, within standards, no action required.

6) Complaint of: “Bath tub in master bath continues to have stain after attempts to fix”, jobsite did not find stain, no action required.

7) No work done in last 2 years, no action required.

8. On March 18, 2011, the Registrar of Contractors issued a letter informing the Complainant that a citation would not be issued against the Respondent’s license at that time. 9. The Complainant disagreed with the determination not to issue a citation against the Respondent’s license and requested an administrative hearing. 10. There was no dispute that the Respondent did perform some corrective work on the Complainant’s residence during the month of April, 2009. 11. Credible testimony and evidence established that the Respondent repainted and re-caulked the exterior of the Complainant’s residence, performed buffing work on one area of the kitchen granite countertop, performed corrective work on the Complainant’s bathtub, and performed painting work in the Complainant’s bathroom. 12. The credible evidence of record is insufficient and fails to support a finding that the granite around the kitchen sink fails to comply with applicable workmanship and industry standards. 13. The credible evidence of record is insufficient and fails to support a finding that the appearance of the Complainant’s bathtub fails to comply with applicable workmanship and industry standards. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the painting in the Complainant’s bathroom fails to comply with applicable workmanship and industry standards. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the hairline cracks in the exterior stucco around the window areas of the Complainant’s residence fail to comply with applicable workmanship and industry standards. 16. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned a contract or refused to perform without legal excuse. 17. The credible evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 18. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its construction work in a professional and workmanlike manner. 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. It “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. The Complainant failed to sustain her burden of proof to establish that Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform), A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), 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. 5. Arizona law provides that complaints filed with the Registrar must be filed within two years of the act which is cause for suspension or revocation of the contractor’s license. A.R.S. § 32-1155 (A) provides: A. Upon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation may issue a citation directing the licensee, within ten days after service of the citation upon the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked. Service of citation upon the licensee shall be fully effected [sic] by personal service or by mailing a true copy thereof, together with a true copy of the complaint, by registered mail in a sealed envelope with postage prepaid and addressed to the licensee at the licensee's latest address of record in the registrar's office. Service of the citation and complaint shall be complete at the time of personal service or five days after deposit in the mail. The two year period prescribed by this subsection shall commence on the earlier of the close of escrow or actual occupancy for new home or other new building construction and otherwise shall commence on completion of the specific project. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, September 23, 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