ALJDEC decisions subject to certification as final

2011A-992-ROC-com · Registrar of Contractors · 2012-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2012, at 8:00 a.m. APPEARANCES: Paul Brown (hereinafter “Complainant”) appeared on his own behalf. Marzo Construction Inc (hereinafter “Marzo” or “Respondent”) appeared through its attorney, Sean E. Brearcliffe. Esq., Rusing, Lopez & Lizardi, PLLC. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Registrar of Contractors’ Order Setting Compliance Hearing provided, in pertinent part, as follows: On or about September 19, 2011, Counsel for Respondent submitted a Certification of Completion of Corrective Action maintaining, among other things, that “[a]ll work was completed as required by no later than September 12, 2011.”

On November 2, 2011, the Registrar sent a copy of Counsel for Respondent’s Certification of Completion of Corrective Action providing Complainant an opportunity to file a Response thereto. On or about October 12, 2011, Counsel for Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Complainant “can not [sic] sign off on the [C]orrective [W]ork [O]rder due to the fact that items are not fixed.” Complainant maintains that the following items are still deficient: (1) living room and dining room floors are missing grout; (2) tiles have not been straightened; (3) windows are still leaking; (4) downstairs’ toilet is loose.

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference by Complainants. If it is determined that Respondent has failed to fully comply with the terms of the August 19, 2011 Order, absent unreasonable interference or denial of access on the part of Complainant, then Respondent’s B.180615-R License shall be immediately suspended. If it is determined that Respondent has fully complied with the terms of the August 19, 2011 Order or that Complainant has unreasonably denied Respondent access to fully comply with the terms of the Order, then this matter shall be closed and no discipline imposed upon Respondent’s B.180615-R License.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.[1]

2. The assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), testified that he performed a prehearing compliance inspection on May 22, 2012. Inspector Grochocki stated that he inspected the four items that Complainant maintained were deficient and observed that there were several tiled areas in the living room and dining room area with cracked and missing grout. Inspector Grochocki testified that Marzo was not in compliance with the terms of the August 19, 2011 Order of the Registrar of Contractors regarding this item.[2] 3. Inspector Grochocki testified that the tiles were straight and within industry standards and that Marzo was in compliance with this item. Inspector Grochocki stated that the windows had been replaced by another contractor and that Marzo was in compliance with this item. Inspector Grochocki testified that the toilet had been replaced and that Marzo was in compliance with this item.[3] 4. Inspector Grochocki testified that the areas of missing and cracked grout were located by the patio door and the entry way.[4] 5. Inspector Grochocki testified that if Marzo had properly corrected the grout in Complainant’s residence and the grout had then been subsequently damaged by another contractor working in Complainant’s residence, then the Registrar of Contractors would not hold Marzo responsible for the other contractor’s work.[5] 6. Enrique Roble Durazo (hereinafter “Mr. Durazo”) testified that he is the principle of Marzo. Mr. Durazo testified that Marzo tightened the bolts of the downstairs toilet and that the toilet was not loose after the corrective work was performed.[6] 7. Mr. Durazo testified that correction of windows was not part of the Corrective Work Order. Mr. Durazo stated that the City of Tucson funded a separate construction project for the replacement of Complainant’s windows and sliding glass door. The replacement of the windows and the sliding glass door was performed by a glass company.[7] 8. Mr. Durazo testified that the tile grout in Complainant’s residence was damaged during the removal and replacement of the sliding glass patio door. Mr. Durazo stated that Marzo has been unable to gain access to Complainant’s residence to correct the tile grout damage caused during the installation of the windows and sliding glass door.[8] 9. Carla Timmons (hereinafter “Ms. Timmons”) testified that she was the City of Tucson Inspector assigned to ensure that Marzo complied with the Corrective Work Order. Ms. Timmons stated that she was physically at the jobsite on September 1, 2011, and September 8, 2011, and that she verified Marzo’s full compliance with the terms of the Corrective Work Order on September 12, 2011.[9] 10. Ms. Timmons testified that the downstairs toilet was removed and replaced and that she witnessed the removal and replacement of floor tiles that were out of alignment as identified by Complainant, Complainant’s father, Complainant’s wife, and the City of Tucson.[10] 11. Ms. Timmons testified that she noted grout cracking and pitting throughout the residence and instructed Marzo to correct the grout pitting and cracking. Ms. Timmons stated that during her September 12, 2011, she observed that all of her requested grout repairs had been completed by Marzo.[11] 12. Ms. Timmons testified that the City of Tucson decided to replace all of Complainant’s windows and doors after Marzo had completed its corrective work on Complainant’s residence because some of the windows were found to be leaking. The patio door was replaced by the City of Tucson to “cover all bases.”[12] 13. Ms. Timmons testified that the last time that she was at Complainant’s residence was on September 26, 2011, when City Inspector Harold Poole was assigned to oversee the construction work on Complainant’s residence. Ms. Timmons stated that Marzo had satisfactorily completed all items on the Corrective Work Order on September 12, 2011.[13] 14. Harold Poole (hereinafter “Mr. Poole”) testified that he is the City of Tucson Inspector currently assigned to Complainant’s case because Complainant’s behavior was considered to be “kind of abusive” towards Ms. Timmons. Mr. Poole testified that there are a “couple of items” that require action in Complainant’s residence but that the City of Tucson and Marzo are having difficulty in getting into the residence to perform the items on the City of Tucson’s punch list.[14] 15. Mr. Poole testified that there was no cracked or missing grout in Complainant’s residence on September 26, 2011, but that since the windows and the sliding glass door have been replaced, there are grout repairs that need to be done and that the repairs will be performed when Marzo and the City of Tucson are allowed access to Complainant’s residence.[15] 16. Mr. Poole testified that in March or April, 2012, Marzo, at the City of Tucson’s expense, hired a window company to remove and replace all of Complainant’s windows and the sliding glass patio door. There was insufficient tile grout available at the time of the window and sliding glass door replacement to correct the damage to the tile grout. Mr. Poole stated that the City of Tucson had difficulty in gaining access to Complainant’s residence to repair the damage to the grout that occurred during the installation of the windows and the sliding glass door.[16] 17. On June 18, 2012, Mr. Poole issued a letter to Complainant informing Complainant that if he failed to contact Mr. Poole by July 9, 2012, his construction project would be closed due to lack of participation.[17] 18. Mr. Poole testified that all of the work set forth in the Corrective Work Order had been satisfactorily completed and that he personally witnessed a portion of the work being performed.[18] 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. Respondent bears the burden of proof to establish that it fully complied with the August 19, 2011 Order of the Registrar of Contractors. 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. Two different City of Tucson Inspectors testified that they inspected Complainant’s residence after Marzo completed its corrective work on Complainant’s residence. Both Inspectors opined that all items set forth in the August 19, 2011 Order of the Registrar of Contractors had been satisfactorily completed by Marzo and that Complainant’s tile grout was damaged as a result of another contractor’s work involved in a separate construction project at Complainant’s residence. This tribunal concludes that Marzo has fully complied with the terms of the August 19, 2011 Order of the Registrar of Contractors. RECOMMENDed order In view of the foregoing, it is recommended that this matter be closed and that no discipline be imposed upon Marzo’s License No. B.180615-R. 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 26, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Order Setting Compliance Hearing. [2] 7/11/12 Hearing Record (hereinafter “H.R.”) at 11:34-12:26. [3] H.R. at 12:34-13:25. [4] H.R. at 21:02-21:36. [5] H.R. at 22:03-22:20. [6] H.R. at 27:19-27:24. [7] H.R. at 27:30-28:54. [8] H.R. at 29:03-30:11. [9] H.R. at 37:16-37:47. [10] H.R. at 37:48-41:21. [11] H.R. at 41:31-42:09. [12] H.R. at 42:28-42:54. [13] H.R. at 43:01-43:27. [14] H.R. at 48:56-50:08. [15] H.R. at 50:38-51:49. [16] H.R. at 51:49-53:35. [17] See Exhibit R-1 (6/28/11 letter from City of Tucson). [18] H.R. at 54:40-55:05.

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