ALJDEC decisions subject to certification as final

2011A-4735-ROC · Registrar of Contractors · 2012-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2012 APPEARANCES: Sheldon Myron and Patsy Clegg appeared personally. Lozano Construction, L.L.C. was represented by its member and qualifying party, Victor I. Lozano. 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. Lozano Construction, L.L.C. (“Respondent”) is the holder of License No. 170656, a Class KB-2 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Sheldon Myron and Patsy Clegg (“Complainants”) are the owners of a rental, manufactured home located at 3519 South Orange Drive, Yuma, Arizona. 3. On August 17, 2011, Complainants filed a written Complaint with the Registrar alleging 15 Complaint items of deficient workmanship by Respondent. The Registrar designated the Complaint as Case No. 2011- 4735. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Daryl McCloskey, performed a jobsite inspection on September 14, 2011, to view the Complaint items. Inspector McCloskey’s “Jobsite Inspection Notes” reflect his decision not to issue a corrective work order because Inspector McCloskey found that Respondent’s scope of work had been completed in a professional and workmanlike manner. Inspector McCloskey could not ascertain that Respondent was responsible for Complainants’ Complaint items. 5. The Registrar issued a Citation and Complaint in Case No. 2011-4735 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (1), (2), (3), namely A.A.C. R4-9-108, (10), and (15). 6. The Registrar forwarded Case No. 2011-4735 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. On March 21, 2011, Complainants purchased a 1992 manufactured home from Pacesetter Homes. 8. On March 22, 2011, Complainants, through their agent and daughter Vonda Elsbury, entered into a contract with Enrique Rivera, doing business as Arizona Mobile Home, to move the home from Pacesetter Homes’ lot to 3519 S. Orange Drive. The contract also provided that Mr. Rivera would perform specified repairs to the home that he would complete no later than April 23, 2011. The total contract price was $13,800.00. Mr. Rivera received a down payment of $6,900.00 on March 22, 2011. 9. Neither Mr. Rivera nor Arizona Mobile Home is licensed by the Registrar. 10. Rubio’s Mobile Home Repair (“Rubio”) is the holder of License No. 8397 issued by the Arizona Department of Fire, Building, and Life Safety. 11. Mr. Rivera contracted with Rubio and Respondent to perform Mr. Rivera’s contractual scope of work, which included some items that constituted contracting as defined by statute, including installation of countertops and doors, and the replacement of the electrical service. 12. On March 30, 2011, Respondent obtained a City of Yuma building permit for the subject project at Mr. Rivera’s request. Mr. Rivera had subcontracted to Respondent work for the pit set for the home. 13. By email dated April 28, 2011, Complainants complained to Mr. Rivera, Rubio, and Respondent about damages caused to the home during the subject project. 14. On May 20, 2011, Complainants presented their punch list to Respondent. The parties reached an agreement that Respondent would perform work as consideration for Complainants’ payment in the amount of $2,500.00, plus the payment of $500.00 owed to Respondent for work previously performed. 15. There is a dispute as to the scope of work Respondent agreed to perform. Complainants contend that Respondent agreed to perform all work contained in the punch list. Mr. Lozano testified that Respondent did not agree to perform all the punch list work, but rather only agreed to install new countertops, trim, and interior doors, and to perform some repainting. Previously, Respondent hired Voltage Electric to replace a 200 amp. electrical pedestal for a price of $900.00, and removed extra dirt to another site for $600.00. 16. At the jobsite inspection, Inspector McCloskey viewed the work performed by Respondent as directed by Complainants. Inspector McCloskey determined that Respondent’s work met workmanship standards, and he did not issue a corrective work order to Respondent or its subcontractors. 17. At the hearing, Mr. Rivera testified that the damages claimed by Complainants were due to subcontractors that he had hired, but none of the damages was caused by Respondent. 18. In June 2011, Complainants hired Perico’s Construction to perform work on the project. However, that subcontractor’s scope of work was not within Respondent’s scope of work on the project. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have 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). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence establishing that Respondent abandoned the work it contracted to perform on the subject project. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence establishing that Respondent deviated from plans or specifications, or that Respondent failed to comply with local building code requirements. 5. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence establishing that Respondent’s work did not meet workmanship standards. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (10), as charged in the Citation and Complaint issued by the Registrar. Originally, Respondent subcontracted with Mr. Rivera, an unlicensed contractor, to perform contracting work on the subject project. Respondent aided and abetted Mr. Rivera by entering into such an agreement. 7. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (15), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence establishing that Respondent did business in a name other than the one appearing on its contracting license. 8. The evidence of record does not support a recommendation of restitution from Respondent to Complainants, pursuant to A.R.S. § 32- 1156.01. RECOMMENDED ORDER Commencing on the effective date of the Order entered in Case No. 2011-4735, Respondent’s License No. 170656 shall be placed on suspension for five (5) days, followed immediately by disciplinary probation for one hundred eighty (180) days. 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 27, 2012.

/s/ Brian Brendan Tully 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