ALJDEC decisions subject to certification as final

2011A-5273-ROC · Registrar of Contractors · 2012-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by corporate President and Qualifying Party Dale Struemke.

WITNESSES: Tom Sandoval, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to siding Respondent installed on Complainant’s house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record. Testimony was provided from ROC Inspector Tom Sandoval. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violation of the statutes and recommending that Respondent be ordered to perform corrective work. FINDINGS OF FACT 1. Respondent is the holder of License No. B.104489-R, a general residential contracting license issued by the Registrar. The license authorizes Respondent to operate as a general contractor for residential projects. Dale Struemke is the Qualifying Party. 2. In 2010, Respondent performed remodeling work at Complainant’s house that included installation of siding. Thereafter, the siding on the front of the house buckled. Complainant filed a complaint with the ROC. 3. In December 2011, ROC Inspector Tom Sandoval inspected Respondent’s work and issued a Corrective Work Order (“CWO”). The CWO confirms that the front siding had buckled, but not the siding on the sides of the home. The CWO states that the siding manufacturer had agreed to pay Complainant for the siding material, but without admitting that the material was defective. At hearing, Complainant confirmed that he had been paid by the manufacturer for new siding. Respondent admitted that he had not done any work to correct the issue. In addition, the CWO required Respondent to correct flashing at the time the siding is replaced, which had not yet occurred. 4. Inspector Sandoval testified at the hearing and confirmed the CWO. He performed a pre-hearing inspection on April 3, 2012, and found that the siding had not been corrected. 5. The parties stated at the hearing that they were having a problem coordinating the work because Complainant wanted all of the siding replaced as he had been paid by the manufacturer for siding for the whole house. Respondent, on the other hand, wanted to be paid for the labor to replace the siding. The parties have been at an impasse. 6. Inspector Sandoval testified that Respondent needs to take down the old siding on the front of the house and install the new siding provided by Complainant to comply with the CWO. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(requires compliance with plans, specifications, and building codes), A.R.S. § 32-1154(A)(3) by way of Arizona Administrative Code (A.A.C.) R4-9-108 (prohibits poor workmanship), and A.R.S. § 32-1154(A)(23)(requires compliance with a CWO). The evidence does not show violation of A.R.S. § 32-1154(A)(2), but does show violation of the other two provisions. 3. Although Respondent was confused about its obligations to Complainant under these circumstances, the evidence shows that Respondent sold and installed siding on the front of Complainant’s house that buckled. This did not meet workmanship standards, as confirmed by Inspector Sandoval in the CWO. The manufacturer has paid Complainant for new siding. In order to comply with the CWO, Respondent must remove the old siding from the front of the house and install the new siding provided by Complainant. Respondent is responsible only for labor and only for the front siding. If Complainant chooses to replace siding on other areas of the house, Complainant must pay the labor for that removal and replacement. Respondent must also correct the flashing as stated in the CWO. 4. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on April 20, 2012. That prior record shows that Respondent has held the license since October 1994 and has never been disciplined. This is an excellent record. Because of this record and Respondent’s reasonable confusion about its obligations under the circumstances, this tribunal does not recommend a civil penalty. 5. The appropriate sanction in this matter is to require Respondent to provide the labor to remove and replace the front siding and the missing flashing as described in the CWO. If Respondent does not do so in a timely manner, the license should be suspended. No civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.104489-R, held by Struemke Corporation dba Struemke Construction, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has made the corrections noted in Conclusion of Law 3 above, and the Registrar 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 2011-5273 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, April 20, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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