ALJDEC decisions subject to certification as final

2011A-2384-ROC · Registrar of Contractors · 2011-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2011 APPEARANCES: Lez McKenzie, Complainant; Mark Marty, Respondent; Scott Deering, Registrar of Contractors Inspector; Rebecca Griffiths and Michael Sheehan, observers ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint and requesting a hearing, Complainant has established that Respondent has violated portions of the Arizona law governing licensed contractors. Based on the evidence of record, Respondent’s license should be subjected to discipline. FINDINGS OF FACT 1. Complainant contracted with Respondent to build Complainant’s home. On April 25, 2011, Complainant submitted a complaint to the Registrar of Contractors regarding his front entry door, stating that it was defective, it leaked, it was not insulated, and Respondent had not responded to his complaints about it. 2. After conducting a jobsite inspection, Registrar of Contractors Inspector Scott Deering issued a Corrective Work Order on May 23, 2011, instructing Respondent to correct the door by appropriate means, but also stating that he could not determine whether the door was supposed to be insulated. 3. After Complainant requested a hearing, Inspector Deering conducted a pre-hearing inspection and found that the problem had not been corrected, though an unsuccessful effort had been made that rendered inoperable one of the small glass windows set in the door. At the hearing, Inspector Deering testified that in his opinion, the door would need to be replaced because it still leaked and it did not fit the entry opening properly. He stated that the arch of the door is curved at a different angle than the doorjamb so that the tiled arch has uneven voids in the shape of wedges at the top corners of the door. He stated that the installation was not aesthetically pleasing and it did not meet workmanship standards. He acknowledged that the “wedge issue” was not on the complaint specifically, but he stated that the issue was brought up at the jobsite inspection, and he considers the doorjamb to be part of the door assembly. Therefore, he would consider the wedge issue to be part of the complaint. He also stated that one of the wedges is loose and the grout is cracking in it. 4. Complainant testified as to his concerns regarding Respondent’s response to the issues over time. He was also concerned about workmanship issues on the home in general and on the door, in particular. He testified about the amount of water leaking under the door and into the spaces in the inset window panes. He wants the door to be replaced. 5. Respondent testified that he tried to find someone to fix the door, but the contractors he sent to the home declined the job after talking to Complainant. He said Complainant interfered with his ability to fix the door. He testified about many reasons why the door might not work properly. Noting that the line items in the contract between the parties estimated $5,000.00 for the door, he asked that the Administrative Law Judge order him to reimburse Complainant a limited amount of $5,000.00 and let Complainant replace the door himself, due to irreconcilable differences between the parties preventing him from repairing the door. He testified that since he has moved to Colorado to look for work, it has been very difficult for him to arrange to replace the door. He objected to any consideration of the wedge issue because it was not included in the complaint, was not causing the water infiltration, and was not, in his opinion, part of the door. He stated that he believes the door can be fixed without being replaced. 6. According to the records of the Registrar of Contractors, the license in this matter has one open complaint against it, and it is currently inactive. 7. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to lack sufficient evidence of record to support a finding of a violation. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. The inactive status of Respondent’s license does not deprive the Registrar of Contractors of jurisdiction. A.R.S. § 32-1154(C). However, Respondent’s inactive status does prevent Respondent from performing or from hiring others to perform any further corrective work. A.R.S. § 32- 1151. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter charged the Respondent with violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and (23). 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar.” The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. A.R.S. § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 6. In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3) and (23) when Respondent failed to install Complainant’s front door in a workmanlike manner and when Respondent failed to correct the deficiency after the Registrar of Contractors Corrective Work Order was issued. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Order in this matter, Respondent’s Class KB-1 license be actively suspended for 14 days. It is further recommended, in addition to the above provided penalty, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32- 1131(3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 4, 2011.

/s/ Dorinda M. Lang 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