ALJDEC decisions subject to certification as final

2011A-2383-ROC · Registrar of Contractors · 2013-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2013, at 8:00 a.m. APPEARANCES: Complainant James Corcoran appeared on his own behalf; Respondent R and H Remodeling appeared through Holly Ann Meneou, its officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.179683-R for general residential contracting to R and H Remodeling Inc. (“Respondent”). On or about April 25, 2011, James Corcoran (“Complainant”) filed a Complaint with the Registrar that alleged five specifically enumerated deficiencies in Respondent’s construction of Complainant’s vacation home at 5890 Paso Bonito Trail, Prescott, Arizona. The Complaint was assigned to the Registrar’s inspector, Phil Coscia, for investigation. Inspector Coscia performed an onsite inspection and on June 13, 2011, issued a Corrective Work Order (“CWO”) that required Respondent to perform certain corrective actions with fifteen calendar days, in relevant part as follows: 1. Log Sealer was not properly applied; some areas have no sealer at all. The sealer was applied only months ago and should have some material warranty as well as the painter hired to apply the materials. The painter (Sergio Perez) does not appear to have a license with the ROC according to the website”:

It was inconclusive that the sealer applied to the log siding has or is failing. The failure of water to bead up when applied is not indicative of the product[‘]s failure. The sealer is intended to preserve the integrity and appearance of the natural wood. The product literature mentions that it continues to protect the wood even after water stops beading on the surface. No corrective work is required of the contractor at this time.

At this time there is insufficient evidence or information in regards to whether R and H Remodeling was aiding and abetting an unlicensed contractor. It does not appear that R and H subcontracted the sealing of the siding to Sergio Perez but that Perez was utilized to assist R and H in the application of the sealer.

2. “Contractor failed to have rain gutter installed on front edge of the upper patio when he was ordering gutters from AZ Seamless. This failure has resulted in extreme staining on the front portion of the wood siding and will continue until the gutter is installed and the wood is cleaned and re-sealed properly”:

ROC: Though there was no construction specifications or contractual requirement for R and H Remodeling to install a gutter at this location[, it] was confirmed that excessive staining of the log siding has occurred due to poor application of the drip edge on the patio deck. Joints in the drip edge were butted together and mastic applied at the joints and the joints were not properly lapped. Water appears to be draining from the patio at the two joints in the drip edge and siding stains are occurring directly (vertically) below these two joints. The drip edge is not effectively carrying water drainage beyond the siding below. It was R and H Remodeling who designed the drip edge detail for the upper patio. Contractor should correct the drip edge to function correctly and remove the stains from the siding and properly refinish the affected areas.

3. “Grout on the upper deck area continues to crack especially around the wood upright beams (Vertical posts for Patio beam). This grout should be replaced with an expandable grout to allow expansion”:

ROC: “State of Arizona Workmanship Standards for Licensed Contractors” provides that contractors should correct “Cracks of more than 1/16” at joints with other dissimilar materials such as bath tubs[”] one time within the first year[.] The cracks which are present in the grout at the support posts for the patio are well under 1/16” and within the workmanship standards. No further corrective action is required at this time.

4. “Outside hand-rails appear to have very uneven application of wood sealer. This has caused the wood to deteriorate within months of the application”:

ROC: As previously stated in the response to complaint #1, above, It was not apparent or evident that the sealer applied to the log siding has or is failing. No corrective work is required of the contractor at this time.

5. “Grout around tub was not removed and replaced with silicone as previously directed in the last Corrective Order. It was covered with an expanding grout material and needs to be removed and replaced with silicone as previously directed”:

ROC: The inspector’s notes, taken at the jobsite prior to the issuance of the Corrective Work Order dated March 16, 2011, show that colored caulking would be used around the tub.[1] The recent inspection found that a siliconized, colored caulking is what was used. The repair is appropriate and found to exceed industry standards. The ROC does not direct the method of corrective repairs chosen by contractors. We do recognize and require repairs be made in a manner acceptable to the industry and using approved materials for repairs. No further corrective work is required of the contractor at this time.

Complainant then twice amended the Complaint to allege additional workmanship deficiencies. Inspector Coscia performed another jobsite inspection and on August 10, 2011, issued another CWO that required Respondent to perform certain corrective actions within fifteen calendar days, in relevant part as follows: 1. Complaint: “The hand rails on the side deck and the rear deck have become very loose over a short period of time indicating that they were not properly secured to the wood deck. This has occurred on the rear steps of that same deck as well. The main posts move several inches back and forth”:

ROC: Per the jobsite agreement, contractor should take appropriate action to correct loose railings as needed.

2. Complaint: “I am also concerned about the top deck hand rails that were also installed by this contractor and would like to have them checked since they are located well above the garage and if they failed it could result in a fatal accident”:

ROC: The railings for the 2nd-floor patio deck appear to be firmly attached and the installation was found to meet industry workmanship standards. No corrective action is required of the contractor.

3. Complaint: “The contractor has never completed the installation of the screens which were part of his contract and were separate from the original window package”:

ROC: Contractor should complete the installation of all screens as per the terms of the original contract, ensuring the installation meets exceeds workmanship-industry standards.

4. Complaint: “R and H Remodeling has never removed all of the excess building materials from the site located in the garage as well as the West side area including old lumber and scraps from the original construction located next to the well site”:

ROC: Pursuant to Mr. Corcoran’s original complaint, #2010- [number redacted], the above matter was addressed in an administrative hearing [on] July 22 2011. It is under review and pending a ruling by the administrative law judge. Pending the order on the case, no action is required at this time.

Item amended to the complaint on July 14, 2011:

5. Complaint: “The paint on the chimney cap is peeling. No primer was used on the metal”:

ROC: Per the jobsite agreement, contractor should determine the cause of the peeling paint and make appropriate repairs using proper materials.

Complainant amended the Complaint a few more times to allege additional workmanship deficiencies. Inspector Coscia performed another jobsite inspection and on or about November 15, 2011,[2] issued another CWO that required Respondent to perform certain corrective actions with fifteen calendar days, in relevant part as follows: On November 10, 2011, an inspection was performed to view Mr. Corcoran’s amended items to the above mentioned complaint. The following opinions and recommendations of the inspector are based upon workmanship standards of both the ROC and industry construction practices.

Note: The ROC’S Workmanship Standards for Licensed Contractors, page 2 under “General Statements” provides that: (the) “standards cover performance of those construction items of major concern to the buyer for the first two years of ownership”… In addition it states “The effective date for the start of coverage of these standards should begin with the close of escrow.”

It appears Mr. Corcoran closed escrow on the home on or about September 2, 2010.

1: “The green paint on the deck side of the house is peeling. The unlicensed contractor that R&H used did not properly prep or seal the metal and therefore the paint has peeled. The correction is to properly scrape, seal and paint the trim edge to correct the peeling”:

Inspector’s finding: The ROC Workmanship Standards; page 20 under “PAINTING” (1.) reads:

Possible Deficiency: Exterior paint or latex stain peels or deteriorates. Acceptable Tolerances: None. Contractor Responsibility: Contractor should properly prepare and refinish affected areas matching color as closely as possible. Where finish deterioration affects the majority of the wall or area, the whole area should be refinished.

Inspector’s Recommendation: Contractor should correct by the appropriate means.

2: “The monument entry pole at the exit driveway was damaged by Ron Meneou and he has not replaced or repaired it as of this date. When I met Ron to perform the last corrective work based on the Administrative law hearing Ron Meneou admitted to me that he had backed his truck into the pole. Inspector: The pole needs to be repaired or replaced”:

Inspector’s finding: Respondent straightened the pole prior to inspection. Item has been corrected. Inspector’s Recommendation: No further action is required of the respondent.

3: “The bedroom fireplace has a safety issue with the tire screen, it appears that some of the metal installation screws are preventing the screen from opening or closing [properly] and the screws need to be removed or cut to a proper length”: Inspector’s finding: When sliding the fireplace screen the sheet metal screws used to mount the backer board protrude thru the back of the fireplace interfering with operation of the screen.

Inspector’s Recommendation: Contractor should correct by the appropriate means.

4: “The clear rail coating on the deck side of the house is cracking and peeling and requires repair by sanding and re- application of an exterior wood coating. Once again this coating was applied by an unlicensed contractor that R&H chose to do the work. The contractor was Sergio Perez and the ROC has been notified of this unlicensed contractor and the past inspectors have chosen not to issue a citation against Ron for the choice of using unlicensed contractors for his remodeling”: Inspector’s finding: Respondent has previously corrected areas of the clear finish of the exterior wood log surfaces. Page 20 of the ROC Workmanship Standards for Licensed Contractors under PAINTING (3), provides:

Possible Deficiency: Deterioration of stain, varnish or lacquer finishes. Acceptable Tolerances: Finishes on interior woodwork should not deteriorate during the first year of ownership. However, varnish type finishes used on exterior will deteriorate rapidly. Contractor Responsibility: The contractor should correct or repair deteriorating finish one time during the first year…

Inspector’s Recommendation: No further action is required of the respondent. Respondent has complied with the requirements of the Registrar’s standard.

5: Now that the construction materials have been removed from the garage by a directive from the ROC, it is obvious that little care was taken by the contractor to prevent paint from being spilled on the floor in a variety of areas and this paint should be cleaned up. Have also noticed overspray on the floors on the garage floor which should also be cleaned”:

Inspector’s finding: There is paint and overspray stains visible on the floor from respondent[‘]s work. Inspector’s Recommendation: Contractor should correct by the appropriate means.

6: “The caulking on a variety of the logs has failed or was improperly applied. You can see voids in the caulking, and in [some] areas no caulking exists allowing moisture to enter log connections. This should be corrected to prevent future wood rot”:

Inspector’s finding: The pliable rubberized-type caulk used to seal log siding and trim is stretching and causing voids or openings in the caulking. It appeared the stretching is due to expansion and contraction of the wood. The trim around the garage door opening was never caulked.

Page 4 of the ROC Workmanship Standards for Licensed Contractors”, under “CARPENTRY – FINISH - (EXTERIOR)” reads:” Due to varying moisture conditions throughout Arizona, wood products will continue to expand and contract. This action is normal and beyond the contractors control.”

Also page 2 of the Workmanship Standards, under “GENERAL STATEMENTS” (2.) specifically states “Owner maintenance items include”: 2. “Interior and exterior caulking (excluding roofing sealant) after the first year of occupancy.” Inspector’s Recommendation: Per ROC standards, no corrective action is required by respondent on the existing caulking. Respondent however should seal the trim around the garage opening.

7: “The final grading around the house was improperly graded. The rear of the home has runoff and it collects under the side deck since no barriers were properly grading the dirt which would have directed the flow from the back to a small valley on the side of the home diverting the flow and collection of water away from the foundation and not under the house. R&H remodeling walked off the job and left many details incomplete which has caused many ROC complaints to be filed against them”: Inspector’s finding: The home is situated down slope on hilly terrain that is natural, undisturbed land. The respondent had cut a swale or drainage channel at the top of the property to divert runoff water to drain to the sides of the home. The City of Prescott’s inspection record shows final grading of the property was approved on 9/2/2010 and it was in compliance with the local code(s). At the time the Certificate of Occupancy was issued it was confirmed the respondent had properly graded the property to establish the correct drainage pattern. However since that time there has been some erosion of the swale allowing some runoff to drain towards the side patio. It is undisputed that the property surrounding the home is highly susceptible to soil erosion and periodic maintenance will be required to preserve the established grading and drainage pattern. It was found that once respondent had established the proper grading it is the responsibility of the property owner to maintain the grade. Inspector’s Recommendation: No further action is required of the respondent.

October 7, 2011, amendment to complaint

1: Mr. Corcoran states the cable company could not determine where the respondent’s wiring from the utility box, mounted on the exterior wall, terminates inside the home. Respondent said he had no idea where the (coax) cable terminates inside the home. Cable One (Company) spent about 6 hours under the house and came up empty handed. I contacted the security company to see if the cables had been terminated in the “smart box”. I contacted the respondent and he told me he did not have the key to the security box and he had no idea what happened to it. I searched out the security company, located them and got a key to the security box:

Inspector’s finding: Solely based on hearsay, the inspector cannot make a determination that the installed communication cables are non-functional. The inspector has no first-hand knowledge of this and was not present when the cable company toned the cable(s).

Inspector’s Recommendation: No corrective action is required of respondent at this time.

2: The security box located in the pantry area was improperly installed by the contractor and the contractor allowed the drywall company to drywall the box so tightly that it is impossible to open the box to work on the security wires.

Inspector’s finding: The box is set too deep within the wall to allow for access door to fully open. Inspector’s Recommendation: Contractor should correct by the appropriate means.

On or about December 20, 2011, Inspector Coscia issued an amendment to the November 15, 2011 CWO that provided in relevant part as follows: The Inspector’s Recommendation in item #6 . . . is hereby corrected to read as follows:

Inspector’s Recommendation: “Per the ROC Workmanship Standards, no corrective action is required by respondent on the existing caulking. However, respondent should properly apply caulking where missing around the garage opening and any other necessary areas of exterior siding and trim where caulk[ing] was omitted.”

All three of the CWOs and the amendment to the November 15, 2011 CWO advised the parties that “[f]rom a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.” After Respondent failed to resolve all of the complaint items to Complainant’s satisfaction, he requested a hearing and the Registrar issued a Citation and Complaint charging Respondent with certain statutory violations. On October 19, 2012, the Registrar issued an Order Quashing Citation and Complaint because it did not contain the proper statutory violations. On November 5, 2012, the Registrar reissued the Citation and Complaint charging Respondent with possible violations of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(10), and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the reissued Citation and Complaint that denied any statutory violations and affirmatively alleged that Complainant had denied Respondent reasonable access to comply with the CWOs. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on February 1, 2013. Inspector Coscia testified. Complainant submitted eleven exhibits and testified on his own behalf. Respondent submitted four exhibits, including one exhibit that consisted of three photographs of Complainant at the jobsite, and presented the testimony of two witnesses: (1) Ronald Alan Meneou, Respondent’s qualifying party and president; and (2) Able Huerta, Respondent’s employee who accompanied Mr. Meneou to Complainant’s residence to attempt to comply with the CWOs. Hearing Evidence The Parties’ History Respondent is the third general contractor who worked on the project to construct Complainant’s vacation home. Complainant solicited Respondent to work on the project after its officers moved from the Phoenix area to Prescott. The parties’ contract was a “cost plus” contract under which Complainant agreed to pay for Respondent’s costs for subcontractors and for its own labor and materials for items that it did not subcontract to others, plus a certain percentage of those costs for its profit and overhead. Because Respondent did not have a business account at a local bank, Complainant opened an account for his project under Respondent’s name at a Prescott bank, with himself as the authorized signatory. Complainant signed all of the checks to subcontractors, suppliers, and Respondent for work and materials under Respondent’s “cost plus” contract to complete construction of Complainant’s vacation home. Complainant hired some of the first two general contractors’ subcontractors to work directly for him after the first two general contractors left the project. The subcontractor who constructed the fireplace in the bedroom (November 15, 2011 CWO Item No. 3) was hired by one of the first two general contractors, not Respondent. Complainant testified that Respondent hired an unlicensed painting subcontractor named Sergio Perez. Mr. Meneou denied that he hired Mr. Perez. Respondent submitted copies of all the checks that Complainant had signed on Respondent’s account for the project.[3] The checks did not include any check made payable to Mr. Perez. Respondent’s work on Complainant’s vacation home passed the last of the local building authority’s final inspections on September 10, 2010, and the local building authority issued a certificate of occupancy. Complainant filed a total of seven complaints with the Registrar against the general contractors and subcontractors who were involved in the construction of his vacation home, including two complaints against Respondent.[4] On or about September 23, 2010, Complainant filed his first complaint with the Registrar against Respondent, to which Inspector Coscia’s June 13, 2011 CWO Item No. 5 and August 10, 2011 CWO Item No. 4 referred. The Registrar designated Complainant’s first complaint against Respondent as Case No. 2010-[number redacted]. On July 22, 2011, Case No. 2010-[number redacted] proceeded to hearing before Administrative Law Judge (“ALJ”) Eric A. Bryant of the OAH. The Registrar’s decision in Case No. 2010-[number redacted] noted that Inspector Coscia was the second inspector that the Registrar assigned to investigate Complainant’s complaint against Respondent and that the two inspectors issued three CWOs to Respondent.[5] The Registrar’s Order in Case No. 2010-[number redacted] substantially adopted ALJ Bryant’s conclusion that Respondent’s workmanship was deficient in two minor respects.[6] As a result, the Registrar required Respondent to take two corrective actions to avoid having its License No. B.179683-R suspended: (1) To apply touchup paint to the garage ceiling; and (2) To remove construction materials from the west side of the vacation home, but only if Complainant designated the materials to be removed by piling them in a specific area. The Registrar concluded in Case No. 2010-[number redacted] that Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23) because the complaint about the paint touchup was added after the CWOs were issued and the removal of construction material was not required by any of the CWOs.[7] Complainant testified that he had filed a criminal complaint with the Yavapai County Sheriff’s Office (“YCSO”) against Respondent or its officers and that YCSO was conducting an investigation into his complaint. However, Complainant testified that he would allow Respondent back on the jobsite to perform further repairs if Respondent scheduled the repairs to comply with his schedule. Complainant requested that the Registrar unconditionally revoke Respondent’s license because its work was still not complete on his project. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 19, 2013. Such prior License record reflects that Respondent’s license was current, one complaint was closed as resolved/settled/withdrawn, and one complaint was pending against the license. The Remaining Workmanship Complaints Complainant testified that three items remained at issue including (1) Paint overspray on the garage floor (November 15, 2011 CWO Item No. 5); and (2) The drip edge on the front of the upper patio (June 13, 2013 CWO Item No. 2); and (3) The resulting water stains on the logs from the drip edge weeping on the logs on the front of the house (June 13, 2013 CWO Item No. 2). Respondent’s Failure to Remove the Paint Overspray on the Garage Floor Complainant testified that he stored personal property in his garage. Complainant testified that after he removed the smaller items of personal property and to allow Respondent access to the garage floor to remove the paint overspray, he and his son put gliders on the large metal shelves, large outdoor barbeque, and other large items in the garage. Complainant testified that Respondent could easily move the large items from side to side when it removed the overspray. Mr. Meneou testified that he intended to use a pressure washer to remove the overspray from the garage floor and that Respondent would need to put plastic sheets over the walls, doors, and other fixtures to protect them because the pressure-washing process would involve spraying water at a high velocity at the floor, which would splash all over the garage and potentially damage uncovered fixtures or personal property. Mr. Meneou testified that after he was finished up the last few other items on the CWOs, he went to the garage and asked Complainant to remove his personal property from the garage so that Respondent could pressure- wash the floor to remove the overspray. Mr. Meneou testified that Complainant became irate and started cursing at him. Mr. Meneou testified that he picked up his tools and started walking to the truck. Mr. Meneou used his cellular phone to photograph Complainant. One of the photographs shows Complainant at very close range with his mouth open and his arm raised, with his palm out.[8] Mr. Huerta testified that he went to Complainant’s vacation home to help Mr. Meneou comply with the Registrar’s CWOs to Respondent and that Mr. Meneou had told him that he should return to where Mr. Meneou was and act as a witness if he heard any noise. Mr. Huerta testified that he was scraping paint when he heard Complainant yelling and that he went to the garage, where he knew Mr. Meneou was working. Mr. Huerta testified that Complainant was screaming because his property in the garage had not been moved. Mr. Huerta testified that when Complainant got so close to Mr. Meneou, Mr. Huerta feared that Complainant would hurt Mr. Meneou. Respondent’s Failure to Correct the Drip Edge on the Front of the Patio and Resulting Stains on the Logs The exterior of Respondent’s vacation home is constructed of hand-sawn logs. The front edge of the patio has no overhang and is flush with the siding. As a result, water runs off the drip edge, causing stains. Mr. Meneou testified that the stains result from a design defect. Mr. Meneou testified that even a 6” overhang would prevent the stains. Mr. Meneou testified that Respondent did not design or construct the drip edge on the upper patio. At Respondent’s suggestion, Complainant installed a gutter along the front edge of the patio. Inspector Coscia testified that if snow filled the gutter and started to melt, water could back up behind the gutter, causing water stains. Respondent repaired the stains on the logs by sanding them. Inspector Coscia testified that Respondent’s repair was appropriate. Complainant submitted photographs of Respondent’s repair, which were either taken at an angle looking up at the log wall[9] or extremely close.[10] Complainant testified that Respondent had ruined the hand-sawn logs. Inspector Coscia testified that he performed a prehearing jobsite inspection on January 30, 2013, and that when he looked at the wall, it appeared to meet the Registrar’s standards. Inspector Coscia testified that the Registrar’s inspectors are trained to look at an alleged deficiency as it is intended to be seen because photographs can make minor imperfections look much worse. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[11] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[12] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[13] 3. Complainant did not submit any evidence to establish that Respondent departed from or disregarded plans and specifications or any building codes in violation of A.R.S. § 32-1154(A)(2).[14] 4. Complainant did not establish that Respondent hired unlicensed subcontractor Sergio Perez to perform any work on the project. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(10).[15] Respondent’s Repair of the Drip Edge and the Stains on the Hand-Sawn Logs (June 13, 2011 CWO Item No. 2) 5. Mr. Meneou testified that Respondent did not design or construct the drip edge of the upper patio. His testimony was credible, especially in light of the undisputed evidence that Respondent was the third general contractor on the project. The only evidence to the contrary was Inspector Coscia’s observation on the June 13, 2011 CWO that “[i]t was R and H Remodeling who designed the drip edge detail for the upper patio.” Complainant did not question Inspector Coscia about and the record contains no basis for the observation. 6. Inspector Coscia credibly testified that Respondent’s repairs to the stains on the hand-sawn logs complied with the Registrar’s standards. For the reasons that Inspector Coscia stated, Complainant’s photographs do not establish that the repairs violated the Registrar’s standards. Complainant did not ask Inspector Coscia if he thought that Respondent’s repairs to the drip edge, if any, met the Registrar’s standards. 7. Therefore, Complainant did not establish that Respondent’s construction or repair of the drip edge on the upper patio or repair of the water stains on the hand-sawn logs beneath the drip edge violated the charged statutes. Respondent’s Failure to Clean the Overspray from the Garage Floor (November 15, 2011 CWO No. 5) 8. Respondent did not dispute that it did not clean the overspray from the garage floor. The overspray does not comply with the Registrar’s standards and constitutes a violation of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[16] 9. Mr. Meneou’s testimony that because Respondent planned to use a pressure-washer to remove the overspray, all personal property needed to be removed from the garage was credible. Complainant did not have the right to dictate to Respondent how it would perform repairs to comply with the CWO. Because Respondent established that Complainant did not allow it reasonable access to comply with the November 15, 2011 CWO, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[17] 10. The Registrar should not require Respondent to perform any further work on Complainant’s vacation home as a condition of keeping its license in good standing due to the parties’ extremely strained relationship, the parties’ long and contentious history, and the pendency of Complainant’s criminal complaint with the YCSO against Respondent and Mr. Meneou. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar close Complainant James Corcoran’s Complaint in Case No. 2011-2383 against Respondent R and H Remodeling Inc.’s License No. B.179683-R. 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, February 19, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] As discussed below, this was the second complaint that Complainant filed with the Registrar against Respondent on this project. The Registrar designated the first complaint was designated as Case No. 2010-[number redacted]. [2] The date on the first page of the CWO is November 15, 2011, but the date on the heading on successive pages in November 16, 2011. [3] See Respondent’s Exhibit D. [4] See Respondent’s Exhibit A [5] See the Registrar’s Decision in Case No. 2010-[number redacted] at Finding of Fact No. 2. [6] See the Registrar’s Decision in Case No. 2010-[number redacted] at Conclusion of Law Nos. 2 and 5. [7] See the Registrar’s Decision in Case No. 2010-[number redacted] at Conclusion of Law No. 3. [8] See Respondent’s Exhibit C-2. [9] See Complainant’s Exhibits 1, 2, and 3. [10] See Complainant’s Exhibits 3 and 4. [11] 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). [12] See A.A.C. R2-19-119(B)(2). [13] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [14] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [15] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]iding or abetting a licensed or unlicensed person to evade this chapter, knowingly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person with intent to evade this chapter.” [16] 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.” [17] 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.” (Emphasis added.)

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