ALJDEC decisions subject to certification as final

2012A-2095-ROC · Registrar of Contractors · 2013-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2012, at 8:00 a.m., and January 25, 2013, at 1:00 p.m. APPEARANCES: Joy Baker (hereinafter “Complainant”) appeared on her own behalf. Diamond B Remodeling and Home Improvement LLC (hereinafter “Diamond”) appeared through its attorney, Les A. Boegemann, Esq., A. Boegemann Law Firm, PLC. 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. Diamond is the holder of License No. C-61.239447-R issued by the Registrar of Contractors. 2. This is a residential matter where Diamond performed remodeling work on Complainant’s residence. 3. Complainant was dissatisfied with Diamond’s workmanship and filed a formal Complaint against Diamond with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on May 16, 2012, directing Diamond to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. No permit on the patio cover (Rear porch): Provide permit. 2. Patio cover not built to code: Per document submitted by the [Complainant] from the Cochise County Building Department, “It was discovered that the construction of the porch did not meet the requirements of the building code for the size of the footings and attachment to the house structure.” 8. Interior siding not all the way down to floor. T-111 is cut short under middle opening along wheelchair ramp. No action is required on the following: 3. No permit for front port enclosure (AZ room): No permit required. 4. Enclosure not built to code: Framing is covered by T-111 siding. 5. Interior AZ room T-111 siding is coming unglued on the inside: Several areas of the T-111 feel soft to the touch, does not look if it was properly sealed or painted, not included in contract with the [Respondent]. 6. Interior trim is not attached: corner trim around door is loose, does not look [as] if it was properly sealed or painted, not included in contract with the [Respondent]. 7. Interior south door jamb cracked: jamb does have a crack, [does] not look if it was properly sealed or painted, not included in contract with the [Respondent]. 9. Exterior of AZ room T-111 siding is coming unglued on the outside: Several areas of the T-111 are bowing, does not look if it was properly sealed or painted, not included in contract with the [Respondent].

6. On May 24, 2012, Inspector Nieves issued a correction to the Corrective Work Order issued on May 16, 2012. The correction to the Corrective Work Order provided, in pertinent part, as follows: Correction to the corrective work order sent on 05/16/12.

Contractor to correct the following by appropriate means: 3. No permit for front porch enclosure (AZ room): Obtain permit, per the Cochise County Building Department a permit is required for the enclosure of an existing porch.

7. At the onset of the scheduled hearing, Diamond’s attorney disclosed that Diamond had been able to obtain the required building permit from the Cochise County Building Department. Diamond then presented a motion for continuance that was opposed by Complainant. Diamond’s motion for continuance was denied. A recess was then taken to allow the parties an opportunity to discuss the matter. 8. At the conclusion of the recess, Complainant stated that she had agreed to give Diamond access to her residence on December 19, 2012, at 9:00 a.m. to complete the corrective action required by the Corrective Work Order. Diamond requested an additional day to remove concrete forms and Complainant agreed to allow Diamond an additional day on December 20, 2012, from 9:00 a.m. to 12:00 p.m. The matter was then scheduled for further hearing on January 25, 2013. 9. Inspector Nieves testified that he performed a pre-hearing inspection on November 15, 2012, and observed that no work had been performed. Inspector Nieves stated that he spoke with Complainant on January 16, 2013, and that she informed him that Diamond had performed no corrective action at her residence. Inspector Nieves testified that he had been present when Complainant denied access to Diamond and Diamond’s attorney on November 15, 2012.[1] 10. Complainant’s neighbor, Naomi Comeau (hereinafter “Ms. Comeau”), testified she was present during Inspector Nieves’ onsite pre-hearing inspection. Ms. Comeau stated that Complainant had previously denied access to Diamond because of the absence of required permits. Ms. Comeau testified that Complainant had contacted the Registrar of Contractors and was informed that Diamond could perform corrective work at Complainant’s residence. Ms. Comeau stated that Diamond did not perform any corrective action at Complainant’s residence on December 19, 2012, and December 20, 2012.[2] 11. Diamond’s attorney stipulated that the items set forth the Corrective Work Order and the correction to the Corrective Work Order were valid and required correction by Diamond.[3] 12. Complainant testified that she contacted the Legal Department of the Registrar of Contractors and was directed to A.R.S. § 32-1161(B).[4] Complainant stated that Diamond had the ability to perform corrective work on her residence pursuant to the provisions of A.R.S. § 32-1161(B). Complainant testified that Diamond had failed to perform corrective work at her residence on December 19, 2012, and December 20, 2012. Complainant stated that Diamond made no effort to contact her to gain access to her residence. Complainant testified that she received no correspondence from Diamond or from Diamond’s attorney requesting access to her residence to perform corrective action.[5] 13. On Diamond’s cross-examination, Complainant acknowledged that she received a letter from Diamond’s counsel dated December 4, 2012. Complainant stated that she was confused by the December 4, 2012 letter because it referred to Case No. 2011-5108. Complainant testified that she thought Diamond was still going to be at her residence on December 19, 2012, and December 20, 2012, to perform corrective work at her residence. Complainant acknowledged that she did not contact Diamond’s attorney to resolve her confusion regarding the December 4, 2012 letter. Complainant stated that she sent Diamond’s attorney a letter on December 19, 2012, stating that she had chosen one alternative contractor that would be available to perform the directed corrective work in 2013. Complainant acknowledged that she had not give Diamond authority to cause an alternative contractor to perform corrective action at her residence. Complainant testified that she did not understand the December 4, 2012 letter.[6] 14. The December 4, 2012 letter provided, in pertinent part, as follows: [P]lease provide me with the name and contact information of the preferred contractor you wish to perform the remediation work. And, if possible, provide the names and contact information for one or two alternate contractors in case your preferred contractor is unable or unwilling to perform the remediation work in a timely manner.

Unless you request otherwise, we will schedule your preferred contractor (or an alternative, if your preferred contractor is unavailable) to perform the repairs on December 19th and 20th of this year.

Based on the ruling in this matter, if my client is not allowed to make the repairs required in the alternate matter we may attempt to have your preferred contractor perform that work as well.

Please get back to me quickly, as time is of the essence.[7]

15. Administrative notice is taken of Diamond’s prior license record as reflected on the Registrar of Contractors’ public website on February 11, 2013. Such prior license record reflects that License No. C-61.239447-R of Diamond was suspended until compliance on 11/16/12, and suspended for non-renewal from 03/01/10 through 04/01/10. 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. There was no credible evidence that Diamond abandoned a contract or refused to perform work at Complainant’s residence. This Tribunal concludes that Complainant failed to meet her burden of proving that Diamond violated the charged provision of A.R.S. § 32-1154(A)(1).[8] 4. Diamond failed to obtain a required permit for the patio cover on the rear porch and the construction of the rear patio cover on the rear porch failed to comply with applicable code requirements. The T-111 siding is cut too short under the middle opening along the wheelchair ramp. This Tribunal concludes that Diamond violated the charged provisions of A.R.S. § 32-1154(A)(2)[9] and A.R.S. § 32-1154(A)(3),[10] namely, A.A.C. R4-9- 108.[11] 5. The written estimates provided by Diamond for the construction work at issued failed to contain Diamond’s contractor’s license number preceded by the acronym “ROC.” This Tribunal concludes that Diamond violated the charged provision of A.R.S. § 32-1154(A)(13),[12] namely, A.R.S. § 32- 1124(B).[13] 6. Both parties confused the issues in the matter with the issues in Case No. 2011-5108 involving the same parties. In view of the confusion regarding Diamond’s counsel’s letter of December 4, 2012, this Tribunal concludes that Complainant failed to meet her burden of proving a violation of the charged provision of A.R.S. § 32-1154(A)(23).[14] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-61.239447-R of Diamond shall be revoked unless the Registrar of Contractors receives and accepts written proof that Diamond has fully complied with the terms of the written Corrective Work Order issued in this matter and that Diamond has brought all of its business and communication forms into full compliance with the provisions of A.R.S. § 32-1124(B). It is further recommended that if on or before the effective date of this Order, Diamond fully accomplishes the above described corrective action and provides acceptable proof to the Registrar of Contractors that all of Diamond’s business and communication forms comply with the provisions of A.R.S. § 32-1124(B), then the above-provided License revocation shall not take place and that 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, February 12, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/16/13 Hearing Record (hereinafter “H.R.”) at 6:25-1157. [2] H.R. at 12:20-21:48. [3] H.R. at 18:24-19:37. [4] A.R.S. § 32-1161(B) provides, in pertinent part, as follows:

After suspension of the license pursuant to the provisions of section 32-1154 the licensee may perform, without compensation, warranty work or other corrective work.

[5] H.R. at 21:55-25:17. [6] H.R. at 25:39-52:47. [7] Exhibit No. R-1 (12/4/12 Letter from A. Boegemann Law Firm, PLC). [8] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [9] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the 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. [10] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [11] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[12] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [13] A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public. C. If an application for a license is denied for any reason provided in this chapter, the application fee paid by the applicant shall be forfeited and deposited pursuant to section 32- 1107. A reapplication for a license shall be accompanied by the fee fixed by this chapter.

[14] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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