ALJDEC decisions subject to certification as final

2012A-158-ROC · Registrar of Contractors · 2012-07-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 2012, at 1:00 p.m. APPEARANCES: Complainants Jerry and Jennifer Summers appeared on their own behalf; Respondent Bob Cunningham Plastering, LLC appeared through Robert Joseph Cunningham, a member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-36.267062-D to Bob Cunningham Plastering, LLC (“Respondent”). 2. The Registrar received a complaint against Respondent from Jerry and Jennifer Summers (“Complainants”) regarding its application of stucco to the outside of their house at 2235 East Kerley Lane in Cottonwood, Arizona. 3. The Registrar assigned the complaint to its inspector, Cliff Frandsen, for investigation. Inspector Frandsen performed a jobsite inspection and on February 10, 2012, issued a Corrective Work Order (“CWO”) to Respondent. The CWO required Respondent to take certain corrective action within fifteen calendar days, in relevant part as follows: * License # 267062 issued to Bob Cunningham Plastering was suspended for Lack of Bond on 7/23/11 and cannot do or subcontract the following corrective work until the suspension is lifted.

The contractor shall take necessary and proper action to remediate the deficiencies in the base coat of stucco on this new home to provide a substantial substrate for the finish coat of stucco. The finish coat shall be applied in a workmanlike manner once the base coat is acceptable.

4. The Registrar issued a Citation and Complaint against Respondent charging violations of A.R.S. § 32-1154(A)(1), 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 written answer to the Citation and Complaint, denying that it was responsible for the poor appearance of the stucco and affirmatively alleging that Respondent was no longer in business and could not complete the job, but that there was enough money left in the job for another contractor to complete it. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A videoconference hearing was held from the Registrar’s office in Flagstaff, Arizona. Inspector Frandsen testified. Complainants submitted fifteen exhibits and presented Complainant Mr. Summers’ testimony. Respondent presented the testimony of its member, Robert Joseph Cunningham. 8. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 6, 2012. Such prior License record reflects that Respondent’s license remained administratively suspended for lack of bond and that one complaint was pending against the license. Hearing Evidence 9. Respondent contracted to apply stucco to the exterior of Complainants’ house for a total contract price of $20,131.00. At the time Complainants filed the complaint, they had paid Respondent a total of $12,800.00 for the material and labor for the lath and initial brown coat for the stucco. Complainants had not paid Respondent anything for the material and labor for the finish coat or final draw. 10. Inspector Frandsen testified that when he performed the jobsite inspection, Respondent had applied only the initial brown coat for the stucco. Inspector Frandsen testified that he saw numerous deficiencies in the brown coat, including that the brown coat was excessively cracked, wavy, and uneven. Inspector Frandsen testified that quite a bit of remedial action would be needed to make the brown coat an acceptable substrate for the final color coat for the stucco. 11. Inspector Frandsen testified that Mr. Cunningham said that Respondent had not performed any remedial action to comply with the CWO. Inspector Frandsen testified that when he was in the area on June 26, 2012, he went by Complainants’ house and confirmed that no corrective work had been performed. 12. Mr. Cunningham acknowledged that the brown coat needed repairs. Mr. Cunningham testified that Respondent could not perform the repairs because its license was suspended for lack of bond. Mr. Cunningham testified further that Respondent could not afford to pay another contractor to perform corrective work because he is living on Social Security and a job that pays only $11.00/hour. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged contracting statutes.[1] 2. Complainants bear 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] 3. Inspector Frandsen credibly testified and Mr. Cunningham acknowledged that the appearance of the brown coat was poor. Therefore, Complainants established that Respondent performed work that was unprofessional and not workmanlike, in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108. 4. Mr. Cunningham also acknowledged that Respondent did not complete the stucco or comply with the CWO because it was out of business. Therefore, Complainants established that Respondent abandoned the contact, in violation of A.R.S. § 32-1154(A)(1), and failed to comply with the Registrar’s written directive, in violation of A.R.S. § 32- 1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, Respondent Bob Cunningham Plastering, L.L.C.’s License No. K-36.267062-D be revoked unless it pays Complainants an amount of money that is sufficient to allow them to hire an appropriately licensed contractor of their choice to remediate the deficiencies in the brown coat of stucco at their new home to provide a substantial substrate for the finish coat of stucco. It is further recommended that the Registrar not revoke Respondent’s license and, instead, close the complaint in Case No. 2012-158 if on or before the effective date of the Registrar’s order, Respondent provides written proof that is satisfactory to the Registrar that Respondent has paid Complainants an amount of money that is sufficient to allow them to hire an appropriately licensed contractor of their choice to remediate the deficiencies in the brown coat of stucco at their new home to provide a substantial substrate for the finish coat of stucco.. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’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 Respondent tenders payment of any outstanding prior civil penalty. 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 9, 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; 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).

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