ALJDEC decisions subject to certification as final

2011A-4721-ROC · Registrar of Contractors · 2012-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2012, at 8:00 a.m. The matter was held open until April 25, 2012. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its authorized representative, Alexander Ross. 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. Respondent is the holder of License No. B.214567-R issued by the Registrar of Contractors. 2. This is a residential matter where Respondent performed remodeling work on the bathrooms and rear patio area of Complainant’s residence. 3. Complainant was extremely dissatisfied with Respondent’s workmanship and demanded that Respondent correct its workmanship to applicable workmanship standards. When the Respondent failed to comply with Complainant’s demands, she filed a formal Complaint against Respondent with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 30, 2011, issued a written Corrective Work Order directing Respondent to perform designated corrective work on Complainant’s residence. 5. The assigned Agency Inspector conducted an on-site pre-hearing inspection and observed that Respondent had failed to comply with the terms of the August 30, 2011 Corrective Work Order. 6. Complainant filed an addendum to her complaint. The assigned Agency Inspector conducted an additional on-site inspection and on November 4, 2011, issued a second written Corrective Work Order directing Respondent to perform designated corrective action on Complainant’s residence. 7. The assigned Agency Inspector testified that Complainant had agreed that Respondent had complied with the terms of the November 4, 2011 Corrective Work Order. 8. Complainant filed an additional addendum to her complaint. The assigned Agency Inspector conducted another on-site inspection and on December 6, 2011, issued a third written Corrective Work Order directing Respondent to perform designated corrective work on Complainant’s residence. 9. The assigned Agency Inspector testified that during the pre-hearing inspection, he observed that Respondent had failed to comply with the terms of the December 6, 2011 Corrective Work Order. 10. There was no dispute that Respondent was given reasonable access to Complainant’s residence and that Respondent then performed corrective work in Complainant’s bathrooms and on her rear patio area. 11. There was no dispute that Respondent’s corrective work in Complainant’s bathrooms and on her rear patio area failed to comply with applicable workmanship and industry standards. 12. There was no dispute that the terms of the August 30, 2011 Corrective Work Order and the December 6, 2011 Corrective Work Order had not been fully complied with. 13. Respondent expressed its willingness to return to Complainant’s residence and fully comply with the terms of the August 30, 2011 and December 6, 2011 Corrective Work Orders, provided that Complainant gives Respondent reasonable access to do so. 14. Complainant is understandably reluctant to allow Respondent an additional opportunity to try once again to correct its deficient construction work when it has previously failed to fully correct its admittedly deficient work. However, 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. 15. Although Complainant’s concerns, frustrations, and aggravation she has experienced with the remodeling of her bathrooms are understandable, construction work is not a perfect science. 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, Respondent should be given one final opportunity to complete necessary remedial work on its deficient construction work and to fully comply with the terms of the August 30, 2011 and December 6, 2011 Corrective Work Orders. 16. Credible testimony and evidence established that Respondent failed to properly display its License number in this matter in violation of the charged provisions of A.R.S. § 32-1124(B) (display of license). 17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 10, 2012. Such prior License record reflects that License No. B.214567-R of Casas Bonitas Development LLC is current and that one prior complaint has resulted in discipline being imposed on Respondent’s License because of a violation of state contracting laws. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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. Credible testimony and evidence support findings which establish violations by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action), A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B) (display of license), and A.R.S. § 32-1154(A)(3), namely, A.A.C. 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, License No. B.214567-R of Casas Bonitas Development LLC be revoked unless the Registrar of Contractors receives and accepts written proof that Respondent has fully complied with the terms of the August 30, 2011 and December 6, 2011 Corrective Work Orders issued in this matter, and that Respondent is in full compliance with the provisions of A.R.S. § 32-1124(B) (display of license). It is further recommended that if Respondent properly accomplishes the above described corrective actions, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead, License No. B.214567-R of Casas Bonitas Development LLC shall be placed on disciplinary probation for a period of sixty (60) days. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $600.00 to the Registrar of Contractors 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 this matter, shall result in the automatic revocation of Respondent’s contractor’s 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 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, May 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826