ALJDEC decisions subject to certification as final

2011A-3496-ROC · Registrar of Contractors · 2011-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2011 APPEARANCES: Barbara Desmond and Jeanne Petit were present. Ms. Petit represented herself. (See Finding of Fact No. 6 below). Mbrace Construction, L.L.C. was represented by its authorized representative, Dennis Lurvey. 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. Mbrace Construction, L.L.C. (“Respondent”) is the holder of License No. 222488, a Class KB-2 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On June 12, 2011, Barbara Desmond and Jeanne Petit filed a Complaint with the Registrar alleging deficient workmanship by Respondent on a project at Ms. Petit’s residence located at 7228 East Garfield Street, Scottsdale, Arizona. Ms. Desmond is Ms. Petit’s daughter. The Registrar designated the Complaint as Case No. 2011-3496. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection at Ms. Petit’s residence to view the Complaint items. As a result of that inspection, Inspector Alyea issued a Corrective Work Order dated July 25, 2011, that directed Respondent to perform corrective work to six items of deficient workmanship. 4. The Registrar issued a Citation and Complaint in Case No. 2011-3496 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2011-3496 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Representation of a party before the Office of Administrative Hearings is governed by Rule 31 of the Rules of the Arizona Supreme Court (“Rule 31”). At the commencement of the hearing, it was determined that Ms. Desmond intended to represent the interests of Ms. Petit by virtue of her powers of attorney issued by Ms. Petit. Ms. Desmond did not contract with Respondent, she does not have an ownership interest in Ms. Petit’s residence, and she does not live in the subject residence. Pursuant to Rule 31, the assigned Administrative Law Judge did not permit Ms. Desmond to represent Ms. Petit at the hearing, although Ms. Desmond was permitted to testify as a witness. Ms. Petit represented herself at the hearing. 7. On December 13, 2011, Inspector Alyea performed a prehearing jobsite inspection at Ms. Petit’s residence to view the Complaint items. 8. At hearing, Inspector Alyea testified that Ms. Petit’s master bathroom shower doors are properly hanging on the upper track, but they are not properly working on the bottom of the shower frame. Respondent is determined to be responsible for repairing the shower doors so that they operate properly on the shower’s lower track. 9. The evidence of record established that Ms. Petit hired another contractor to perform necessary repairs to her back door so that the door would operate properly. Ms. Petit paid that contractor the sum of $50.00 for that work. 10. The evidence of record established that all other Complaint items have either been repaired by Respondent to workmanship standards, to have been corrected by other contractors, or to be outside the scope of the Complaint. 11. A review of the Registrar’s official public electronic licensing records reveals that Respondent’s License No. 222488 is currently suspended. That license was suspended on July 7, 2011, until Respondent complies with an Order[1] issued by the Registrar. On October 1, 2011, Respondent’s contracting license was also suspended by operation of law for lack of bond. There is one disciplined complaint and one resolved/settled/withdrawn complaint against Respondent’s contracting license. 12. As a result of the suspensions of Respondent’s contracting license, Respondent may not perform the required remedial repairs to Ms. Petit’s master bathroom shower doors. Instead, Respondent should be required to reimburse Ms. Petit the reasonable cost for her to have the repairs performed by a properly licensed contractor and the $50.00 paid by Ms. Petit to another contractor to repair her back door. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspensions of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and/or regulatory violations in this matter. 3. Pursuant to Rule 31, Ms. Desmond could not represent Ms. Petit before the Office of Administrative Hearings pursuant to the power of attorney issued by Ms. Petit to her. 4. Pursuant to A.A.C. R2-19-119(B), Ms. Petit has 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). 5. 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 repair Ms. Petit’s master bathroom shower doors in a workmanlike manner. 6. Respondent violated the provisions of A.R.S. § 32-1154(23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to repair Ms. Petit’s master bathroom shower doors in a workmanlike manner. 7. Pursuant to A.R.S. § 32-1156.01, Ms. Petit established her entitlement to restitution from Respondent in the amount of $50.00 for the repairs to her back door performed by another contractor. RECOMMENDED ORDER Respondent’s License No. 222488 shall be revoked on the effective date of the Order entered in Case No. 2011-3496. If Respondent provides the Registrar with written proof that Respondent has reimbursed Ms. Petit by certified check or money order for the cost of hiring a properly licensed contractor to repair the bottom track of her master bathroom shower doors in a workmanlike manner and that Respondent has paid restitution to Ms. Petit in the sum of $50.00,[2] and the Registrar approves such evidence of the payments being made, then the above-provided revocation of Respondent’s contracting license shall not take place and the Citation and Complaint in Case No. 2011-3496 shall be closed. In addition to the above-provided disciplinary penalty, if any, 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. 2011-3496, 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, January 3, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Registrar’s electronic records do not specifically identify the Registrar’s Order or the case number. [2] At the conclusion of the hearing while off the record but in the presence of the Administrative Law Judge, Respondent’s authorized representative, Dennis Lurvey, asked Ms. Petit to give him a receipt for the $50.00 in cash he was prepared to pay her. Although the Registrar’s policy is to require a contractor to make payments via certified cash or money order, the facts in this case support a cash payment from Respondent to Ms. Petit evidenced by a written receipt from Ms. Petit.

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