ALJDEC decisions subject to certification as final

2011A-552-ROC · Registrar of Contractors · 2011-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Abraham Alvarez Ramos. 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. The Respondent is the holder of a Class KB-2 (No. 238074) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling work on the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly correct its work to within applicable workmanship standards despite the Complainant’s repeated requests that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. After filing the initial complaint, the Complainant found additional items of unsatisfactory workmanship and filed several Addendums to his formal Complaint. 6. Pursuant to the filing of the formal Complaint and the Addendums to the formal Complaint, an assigned Agency Inspector conducted several onsite inspections and issued three (3) written Corrective Work Orders directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The Corrective Work Order issued on February 28, 2011, provides, in pertinent part, as follows: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS AND WITH THE APPROPRIATE LICENSE [sic] CONTRACTOR FOR THE FOLLOWING ITEMS.

1. SECURE A BUILDING PERMIT AND HAVE ALL WORK INSPECTED. 2. THE VIABLE SCREWS AND SCREW HOLES IN THE UPPER CABINETS. 3. THE WATER DAMAGE TO THE CABINET BELOW THE KITCHEN SINK. 4. THE MISSING STOVE KNOBS. 5. THE ELECTRICAL THROUGH THE KITCHEN BY A LICENSE [sic] ELECTRICAL CONTRACTOR. 6. COMPLETE THE FLOORING. 7. THE SOFT FLOORING IN FRONT OF THE OVER AREA. 8. INSTALL THE MISSING CABINET IN THE LAUNDRY AREA AND BY THE WEST KITCHEN DOOR. 9. INSTALL THE MISSING TRIM AROUND THE WEST KITCHEN DOOR. 10. COMPLETE ALL LIGHTING IN THE KITCHEN, LAUNDRY AND PANTRY.

11. COMPLETE THE EXHAUST FAN VENT IN THE KITCHEN. 12. INSTALL THE LAUNDRY AREA DOOR. 13. COMPLETE THE WEST WINDOW AREA THAT WAS COVERED UP. 14. INSTALL THE MISSING CABINET DOOR. 15. PAINT THE PANTRY. 16. CORRCET [sic] THE WALL AREA IN BETWEEN THE KITCHEN AND LIVING. 17. SUPPLY THE CORRECT LIGHT BULBS FOR THE KITCHEN.

8. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the February 28, 2011 Corrective Work Order. 9. The Corrective Work Order issued on March 14, 2011, provides, in pertinent part, as follows: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS.

1. THE KITCHEN SINK NEEDS TO BE CENTER TO THE UPPER CABINETS. 2. THE PLUMBING FOR THE WASHER NEEDS TO BE CORRECTED 3. THE COUNTERTOPS NEED TO BE COMPLETED. 4. THE CABINETS DOORS AND DRAWERS ARE MISSING PULL AND / OR KNOBS. 5. THE TRUSSES AND / OR RAFTER NEED TO BE INSPECTED. 6. COMPLETE THE TILE FOR ALL WALL AREAS. 7. [THE] DOOR AND / OR BLIND FOR THE LAUNDRY ROOM 8. THE CABINET FOR THE LAUNDRY. 9. COMPLETED ALL WORK THAT IS IN THE CONTRACT (WRITTEN AND VERBEL [sic] CONTRACTS). ALSO COMPLETE ALL WORK TO CODE.

10. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the March 14, 2011 Corrective Work Order. 11. The Corrective Work Order issued on April 26, 2011, provides, in pertinent part, as follows: THE RESPONDENT (CONTRACTOR) IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS:

1. The chipped corners on the laminated countertops 2. The pieces of laminate by the oven that needs to be corrected 3. The texture and paint on the kitchen ceil. 4. The seam in the wood panel on the island. 5. The knobs for the burner controls for the stove top. 6. The blind for the laundry room door. 7. The overhang of the duct work for the stove top vent. 8. Hook up the water for the ice maker. 9. Install the A/C filter grill. 10. The cracked old tiles. 11. The ends of the cabinets toe kicks. 12. The ceiling texture and paint in the kitchen and dinning room. 13. As per the Jobsite agreement the respondent (contractor) will have all work completed by Friday April 29, 2011 and have the three rooms cleaned.

12. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the April 26, 2011 Corrective Work Order. 13. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 14. Credible testimony and evidence established that the Respondent performed electrical work on the Complainant’s residence. 15. Credible testimony and evidence established that the performance of electrical work is beyond the scope of the Respondent’s License. 16. Credible testimony and evidence established that the Respondent knew that the performance of electrical work was beyond the scope of the Respondent’s License. 17. Credible testimony and evidence established that the Respondent failed to comply with applicable code requirements in its construction work on the Complainant’s residence. 18. Credible testimony and evidence established that the Respondent failed to comply with applicable plans and specifications in its construction work on the Complainant’s residence. 19. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Respondent’s choice to fully comply with the terms of the three Corrective Work Orders issued in this matter.. 20. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 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. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond scope of the license of the licensee), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that, on the effective date of the Registrar’s Order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice to fully comply with the terms of the three written Corrective Work Orders issued in this matter and that the Respondent has caused a properly licensed electrical contractor of the Respondent’s choice to inspect and approve the electrical work that the Respondent performed on the Complainant’s residence. It is further recommended that if the Respondent, utilizing properly licensed contractors, causes the proper accomplishment of the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $900.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (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, September 22, 2011.

/s/ M. Douglas 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