ALJDEC decisions subject to certification as final

2012A-3423-ROC · Registrar of Contractors · 2013-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 2013, at 10:00 a.m. APPEARANCES: Elizabeth Ashmead Curtis (hereinafter “Complainant’) appeared on her own behalf. License No. B.140039-R of Ayer Homes Inc (hereinafter “Ayer”) appeared through its Qualifying Party, Brian Michael Ayer. 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. Ayer is the holder of License No. B.140039-R issued by the Registrar of Contractors. 2. Complainant purchased a new residence constructed by Ayer. 3. Complainant was dissatisfied with Ayer’s workmanship and filed a formal Complaint against Ayer with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection. Inspector Grochocki issued a written Corrective Work Order on August 15, 2012, directing Ayer to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: *Note: License #140039 issued to Ayer Homes has expired on 1/10/12 and cannot do nor subcontract the recommended corrective work in this directive. The only available remedy under this license status, if appropriate, would be financial settlement.

1) Complaint of: "flooring coming up main entry, spreading master bath", jobsite found flooring loose, coming up, hollow areas throughout home[, including] entry, master bath, hallway, living room and dining room, contractor to correct by appropriate means.

6. Complainant filed an addendum to her Complaint regarding the flagstone and alleged moisture issues in her yard. Inspector Grochocki conducted a second onsite inspection on October 15, 2012. Inspector Grochocki determined that no corrective action was required on the flagstone and alleged moisture issues. Inspector Grochocki found as follows: 1) Complaint of: “flagstone in backyard effected by moisture”, at j/s found one area with separation of layer of flagstone, normal for this type of product, did not find any moisture issues, no action required.

7. In response to the Corrective Work Order, Ayer filed a formal Complaint with the Registrar of Contractors against Ayer’s licensed flooring subcontractor that installed Complainant’s wood floor.[1] There was no dispute that Ayer’s flooring subcontractor performed corrective work on Complainant’s wood floor. 8. Inspector Grochocki testified that he performed a prehearing inspection at Complainant’s residence on February 11, 2013, and observed that the wood flooring in Complainant’s residence had been fully corrected by Ayer’s licensed flooring subcontractor. Inspector Grochocki stated that he also re-inspected the flagstone in Complainant’s yard and observed nothing that would change his previous determination that no corrective action was required on the flagstone. Inspector Grochocki testified that the terms of the Corrective Work Order had been fully complied with.[2] 9. Inspector Grochocki’s testimony is found to be credible. 10. Complainant testified that that she has had a history of problems with the wood floor and the flagstone at her residence. Complainant stated that she believes that there is still a moisture problem under her wood floor that has not been corrected. Complainant testified that she believed that the wood floor in her residence should be removed and replaced. Complainant stated that she has had a continuing moisture problem in her yard and that the flagstone in her yard is deteriorating because of the moisture problem. Complainant stated that the moisture problem should be properly corrected and that her flagstone should be removed and replaced.[3] 11. Ayer’s Qualifying Party, Brian Michael Ayer (hereinafter “Mr. Ayer”), testified that “it took awhile” to find out what was going on with the wood floor. Mr. Ayer stated that Ayer filed a formal complaint with the Registrar of Contractors against its licensed flooring subcontractor. Mr. Ayer testified that Ayer’s licensed flooring subcontractor then properly corrected Complainant’s wood floor. Mr. Ayer stated that Complainant acknowledged that her floor was “fine” after the flooring subcontractor completed its corrective work on Complainant’s wood floor. Mr. Ayer testified that the condition of the flagstone in Complainant’s yard was normal for flagstone.[4] 12. Complainant testified that she believed that there was a great deal of moisture in her floor and that she was worried about the possibility of mold. Complainant acknowledged that “Freddy” worked directly for her to seal the flagstone in her yard. Complainant stated that she paid “Freddy” around a $1,000.00.[5] 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. Credible testimony and evidence established that Complainant’s wood floor was fully corrected by the licensed subcontractor that installed Complainant’s wood floor and that the Corrective Work Order has been fully complied with. The credible evidence of record failed to support a finding that the Complainant’s flagstone or the alleged moisture problem in Complainant’s yard required any corrective action by Ayer. Because construction is not a perfect art, generally contractors must be allowed to correct their work before their licenses are disciplined as result of poor workmanship. Therefore, this Tribunal concludes that Complainant failed to meet her burden to prove that Ayer violated the charged provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[6] and A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, be dismissed. 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, March 7, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] JR McDade Co Inc (ROC License Nos. C-8.044511-R and C-48.085286-R). [2] 2/19/13 Hearing Record (hereinafter “H.R.” at 14:14-16:42. [3] H.R. at 16:50-36:06. [4] H.R. at 36:14-48:38. [5] H.R. at 48:40-50:01. [6] 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.” [7] 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.”

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