ALJDEC decisions subject to certification as final

2011A-6968-ROC · Registrar of Contractors · 2012-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2012, at 8:00 a.m. APPEARANCES: Complainant Cypress Gardens One HOA appeared through Eric Cardin, DDS, its president; Respondent Dan Craig Enterprises LLC appeared through Patrick Daniel Craig, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.245960-D to Dan Craig Enterprises LLC (“Respondent”). 2. Cypress Gardens One HOA (“Complainant”) is a homeowners’ association for a condominium development located at 1616 North 63rd Avenue in Phoenix, Arizona. Complainant filed a complaint with the Registrar about a security fence and gates that Respondent installed at the condominium development. 3. The Registrar assigned the complaint to its inspector, Jim Dimond, for investigation. Inspector Dimond performed a jobsite inspection. On January 23, 2012, Inspector Dimond issued a Corrective Work Order (“CWO”) that directed Respondent to take the following corrective action within fifteen calendar days: Item 1 – The track for the north sliding gate is not recessed. The respondent acknowledged that this portion of the project needs to be completed. Contractor is to correct the condition in an appropriate manner.

Item 2 – The post for the Knox key and receiver appear to be inadequate. The contractor is to ensure that the installation meets the requirements mandated by the Phoenix Fire Department (IFC 2006 with Phoenix Amendments) and comply with any necessary inspections in an appropriate manner.

Item 3 – The hinge rail and hinges on the main entry gates are inadequate for automation. There was no information presented at the inspection supporting that the installation wasn’t adequate[;] however, the contractor, as in item 2, is to ensure that the installation meets the Phoenix Fire Department requirements in an appropriate manner.

Item 4 – The work has not been completed according to the contract[,] e.g.[,] There are no operators, no telephone entry system and the [K]nox boxes have not been completed in a quality manner. The contractor has been compensated in accordance with the proposal yet the work has not been completed. Contractor to correct the condition in an appropriate manner.

4. After Respondent failed to resolve Complainant’s complaint, the Registrar issued a Citation and Complaint charging violations of A.R.S. § 32-1124(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108, and A.R.S. § 32-1154(A)(23). 5. Respondent filed a timely written answer to the Citation and Complaint, asserting that “[w]e are working together to complete this project and work through all unfinished business regarding this matter.” 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A hearing was held on July 12, 2012. Inspector Dimond testified. Complainant submitted eight exhibits and presented the testimony of its president, Eric Cardin, DDS. Respondent presented the testimony of its qualifying party and member, Patrick Daniel Craig. 8. Respondent contracted to install the security fence and gates for a total contract price of $54,054.00. Complainant paid Respondent a total of $54,600.00 for the installation of the security fence and gates. 9. Mr. Craig acknowledged that Respondent had neither complied with the CWO nor completed the scope of work in its contract with Complainant. Mr. Craig testified that although Respondent had paid its subcontractor in full for work on the project, the subcontractor refused to correct or complete its work. Mr. Craig testified that Respondent lacked the financial resources to correct or to complete its subcontractor’s work. 10. After Respondent failed to comply with the CWO, Complainant hired other contractors to correct Respondent’s subcontractor’s deficient workmanship and to complete the security fence and gates. 11. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 24, 2012. Such prior License record reflects that on June 1, 2012, Respondent’s license was suspended for non-renewal. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Respondent is responsible for its subcontractor’s work on its contract with Complainant. Respondent acknowledged that it did not comply with the CWO, that its subcontractor’s work was deficient, and that its subcontractor’s work did not comply with the Phoenix Fire Department’s requirements. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23),[4] A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[5] and A.R.S. § 32-1154(A)(2).[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, Respondent Dan Craig Enterprises LLC’s License No. KB-2.245960-D be revoked. 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, July 24, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [5] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [6] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”

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