ALJDEC decisions subject to certification as final

2011A-7046-ROC · Registrar of Contractors · 2012-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared on his own behalf. Respondent appeared on his own behalf. 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. C-31.196790-R issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent contracted to construct a detached garage for Complainant’s residence. 3. The scope of Respondent’s License No. C-31.196790-R is as follows: C-31 MASONRY Installation of, with or without mortar, stone, structural glass, brick, block, baked clay, or other products common to the industry. This scope includes all C-31R subclassifications.[1]

4. The scope of Respondent’s C-31 license does not include framing, lathing, stucco, drywall, interior painting and concrete work. 5. Respondent also holds License No. C-9.196791-R issued by the Registrar of Contractors. The scope of a C-9 License is as follows: C-9 CONCRETE Installation and repair of concrete, concrete products, and accessories common to the industry. This scope includes all C-9R subclassifications.[2]

6. The scope of Respondent’s C-9 license doe not included framing, lathing, stucco, drywall, and interior painting. 7. Respondent started construction on Complainant’s garage and then abandoned the construction project leaving Complainant with an unfinished garage. When Respondent failed to comply with the Complainant’s repeated demands to return and complete the construction of the unfinished garage Complainant filed a formal Complaint against Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on January 19, 2012, issued a written Corrective Work Order directing Respondent to complete the construction of Complainant’s garage. 9. The Corrective Work Order provided, in pertinent part, as follows: Respondent shall complete the project according to the written contract, plans and specifications and any signed change orders. The quality of workmanship should meet industry standards. Also, contractor should have all necessary inspections performed by the local building official to ensure the completed work meets compliance with local building code(s). Note: Contractor should also take appropriate corrective action to ensure the completion of the following work meet industry workmanship standards: • Drywall finish, texture and paint. • Concrete sections at the NW corner of the garage have either heaved or curled up and are out of level. Troweled edges of nearly all concrete sections at tooled joints are roughly finished • Blemishes and stains on the concrete surface need to be cleaned of construction materials • Concrete under the East garage door is out-of-level and slopes to the West • Connection of piping for the foundation drain to the required location(s) • Installation of concrete pavers for the driveway • Synthetic stucco/plaster on the exterior walls of the garage, matching the house[3]

10. The assigned Agency Inspector testified that Respondent performed construction work beyond the scope of Respondent’s Class C-31 License and failed to comply with the terms of the Corrective Work Order.[4] 11. Jesse Rios Medrano (hereinafter “Mr. Medrano”) acknowledged that he had performed work beyond the scope of his Class C-31 license and that the terms of the Corrective Work Order were warranted. Mr. Medrano stated that he experienced financial difficulties and acknowledged that he abandoned the construction project leaving Complainant with an unfinished garage. Mr. Medrano did not dispute any of the items set forth in the Complaint. Mr. Medrano stated that he was terribly sorry for what happened and would like to pay restitution to Complainant but was financially unable to do so.[5] 12. Raymond Hendricks (hereinafter “Mr. Hendricks”) testified that Respondent had not been on the construction project since December 9, 2011.[6] 13. When Respondent failed to return to the construction project and comply with the Corrective Work Order Complainant caused construction of his garage to be completed at a cost of $14, 307.67.[7] 14. Complainant’s actions in causing the completion of the abandoned construction project after Respondent abandoned the construction project and failed to comply with the Corrective Work Order were shown to be reasonable and justified under the circumstances.[8] 15. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on June 19, 2012. Such prior license record reflects that License No. C-31.196790-R of Jesse Rios Medrano dba Eastern Sky Construction is current. 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Mr. Medrano knowingly contracted beyond the scope of his Class C-31 License. Mr. Medrano abandoned the construction project leaving Complainant with an unfinished garage. Mr. Medrano’s workmanship on the unfinished garage failed to comply with applicable workmanship and industry standards. Mr. Medrano failed to comply with the terms of the Corrective Work Order. This tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A) (1) (abandonment), A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner), A.R.S. § (A)(17) (knowingly contracting beyond the scope of the license or licenses of the licensee), and A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action), and). 4. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

/ / / RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 31.196790-R of Jesse Rios Medrano dba Eastern Sky Construction shall be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that Respondent has, as restitution, paid the sum of $14,307.67 to Complainant. It is further recommended that if Respondent completes the above described restitutionary 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 Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101 (A) (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, July 9, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.A.C. R4-9-103 C-31 License. [2] A.A.C. R4-9-103 C-09 License. [3] January 19, 2012 Corrective Work Order. [4] 6/19/12 Hearing Record (hereinafter “H.R.”) at 19:45-24:19. [5] H.R. at 34:22-38:25. [6] H.R. at 33:05-33:16. [7] Exhibit No. C-6 (Email of June 4, 2012). [8] Exhibit No. C-4 (December 18, 2011 Letter).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826