ALJDEC decisions subject to certification as final

2011A-5097-ROC · Registrar of Contractors · 2012-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2012

APPEARANCES: Complainant appeared on her own behalf; Respondent also appeared on his own behalf.

WITNESSES: Rick Oelke, ROC Inspector Ruth Garbe Terryl Gibson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The case is based on a contract to repair damage done to Complainant’s house by a hailstorm. Respondent denies that he had a contract with Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent to be in violation and ordering that Respondent perform corrective work. FINDINGS OF FACT 1. Respondent is the holder of license B.148753-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Terryl Gibson is the sole proprietor of Respondent and its Qualifying Party. A review of ROC public website information as of the date of this Decision shows that the license has been suspended for non-renewal since October 1, 2011. 2. The evidence shows that after a hailstorm damaged Complainant’s roof, Complainant entered into a contract in January 2011 with “Global Construction, a subsidiary of Gibson and Gibson Development” that was working under Respondent’s ROC license numbers. Complainant did not deal with Respondent himself, but with someone named Matt Haynie. The contract called for repair of the roof and repair of a shed with a flat roof. That work was performed, but the roof subsequently leaked and caused interior damage to the home. 3. After Complainant filed a compliant with the ROC in September 2011, ROC Inspector Rick Oelke inspected the jobsite and issued a Corrective Work Order (“CWO”) ordering Respondent to correct: (1) roof flashings that had not been installed at all penetrations, which had allowed the water intrusion, and the interior damage that had been caused (in the “hall bath” and kitchen); (2) condensate line had not been properly installed; and (3) gas piping to the air conditioning unit was not supported as required by code. That corrective work has not been performed, as verified by Inspector Oelke’s pre-hearing inspection performed on January 30, 2012. 4. Respondent testified that he was hired by Don Johnson, Josh Johnson, and Eric Hoffman, who operated as unlicensed entity “Global Construction,” and then as licensed entities “Professional Home Improvements” and “Wakina Contracting.” He allowed them to “use” his license, as if they had hired his license for use by their company. He testified that he was not aware of the job for Complainant until after the complaint was filed, and did not receive any of the money paid by Complainant. While that may be true, it does not absolve Respondent from responsibility to Complainant, who entered into a contract with Respondent through authorized agents. 5. A search of the ROC public website database shows that Don Johnson and Eric Hoffman obtained two licenses[1] in early 2011 as “Professional Home Improvements, Inc.” and then changed the company name to “Wakina Contracting, Inc.” The ROC should investigate whether Johnson, Hoffman, and those entities were contracting without a license prior to the issuance of their current license or otherwise improperly using Respondent’s license. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The allegations in the Citation and Complaint are that Respondent has violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, and (A)(23), failing to comply with a CWO.[5] As found above, the evidence shows that Respondent violated those statutes. 3. The preponderance of evidence shows that Respondent was aware of and allowed the use of his license by “Global Construction,” an unlicensed entity. Therefore, Respondent is held responsible for the contract with Complainant. 4. Respondent’s license is currently suspended for non-renewal. Because Respondent appeared at hearing and expressed concern for Complainant’s situation, Respondent should be given an opportunity to renew the license and correct the work or hire another to do so. If Respondent does not do so, Respondent’s license should be suspended. Complainant may then proceed to make a claim to the Residential Contractors’ Recovery Fund (“the Fund”). RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that license B.148753-R, held by Terryl Curtis Gibson dba Gibson and Gibson Development, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that that Respondent has corrected or legally caused to be corrected the items listed in the CWO issued in this matter, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-5097 shall be closed.

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 16, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] License numbers K-42.271049-D and KB-2.271051-D. Both licenses have been suspended for lack of bond since October 6, 2011. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] There are other allegations, but they have been dealt with through warning letters.

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