ALJDEC decisions subject to certification as final

2011A-6687-ROC · Registrar of Contractors · 2012-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2012, at 8:15 a.m. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its attorney, John S. Garcia, Esq., Garcia, Hengl, Kinsey & Villarreal, P.L.C. 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. KB-1.228518-D issued by the Registrar of Contractors. 2. This is a residential matter in which Respondent replaced Complainant’s tile floor as part of water restoration work that Respondent performed on Complainant’s residence. 3. Complainant was dissatisfied with Respondent’s workmanship on the new tile floor and requested corrections to the tile floor. 4. When Respondent failed to correct the tile floor to her satisfaction, Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on December 23, 2011, issued a written Corrective Work Order directing Respondent to perform designated corrective work on the tile floor in Complainant’s residence. 6. Respondent and its selected independent tile floor expert were given access to Complainant’s residence to inspect the tile floor at issue on December 12, 2011. 7. When Respondent received the Corrective Work Order, it promptly contacted Complainant and requested access to Complainant’s residence in order to comply with the terms of the Corrective Work Order. 8. There was no dispute that Complainant denied access to Respondent on the basis that she wanted Respondent to pay another licensed contractor of Complainant’s choice to properly remove and replace the entire tile floor in her residence. 9. Respondent’s witness, Ms. Penny Sures, testified that she is a tile expert and conducted an independent inspection of the Complainant’s tile floor on December 12, 2011, and prepared a written inspection report of her inspection. She stated that she observed areas of the new tile floor with lippage that were beyond applicable industry and workmanship standards and that she observed one tile with a bump or bubble that required removal and replacement. 10. There was no credible evidence that the entire tile floor in Complainant’s residence requires complete removal and replacement. 11. 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 work. 12. Although Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the installation of the new tile floor in her home are understandable, construction work, such as that at issue herein, is not a perfect science, and 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 must be given a reasonable opportunity to complete necessary remedial work. 13. Complainant’s denial of access to Respondent in this matter is found to be unreasonable. 14. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 17, 2012. Such prior License record reflects that License No. KB-1.228518-D of S C R Sun Country Restoration Inc was current and in good standing. . 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. Complainant’s unreasonable denial of access in this matter precludes a finding that Respondent violated the charged provision of A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action).. 4. Credible testimony and evidence supported findings which establish that Respondent violated the charged provision of 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, commencing on the effective date of the Registrar’s Order, that License No. KB-1.228518-D of S C R Sun Country Restoration Inc be suspended until the Registrar receives, and accepts, written proof that Respondent has either fully complied with the terms of the written Corrective Work Order issued in this matter or that Respondent has again been denied reasonable access to Complainant’s residence. It is further recommended that if the Respondent properly accomplishes the above described corrective action, or is denied reasonable access to Complainant’s residence, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. 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 17, 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