ALJDEC decisions subject to certification as final

2012A-4006-ROC · Registrar of Contractors · 2013-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 2013

APPEARANCES: Complainant appeared on her own behalf, accompanied by her mother, Maria Durazo, who is also the tenant on the property; Respondent was represented by corporate President and Qualifying Party Ezequiel “Zeke” Diaz.

WITNESSES: Jeff Wills, ROC Inspector Maria Durazo, tenant Zeke Diaz

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to repair of storm damage and replacement of windows performed by Respondent at a house owned by Complainant and occupied by tenant Maria Durazo. The Citation and Complaint issued by the Registrar of Contractors (Registrar or ROC) also alleges abandonment of the project. Respondent denies the abandonment charge and disputes only one of the workmanship allegations. Otherwise, Respondent is willing to perform the corrective work ordered by the ROC. This tribunal entered the complaint file received from the ROC into the record. Testimony was provided from witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violation of statutes and recommending that Respondent be ordered to perform corrective work or have its license revoked. FINDINGS OF FACT 1. Respondent is the holder of License No: B.267969-R, a general residential contracting license issued by the Registrar. The license authorizes Respondent to operate as a general contractor for residential projects. Ezequiel Gardea Diaz is the Qualifying Party. 2. In late 2010 through February 2011, Respondent performed repair work and window replacement at Complainant’s house following hail storm damage. Maria Durazo is the tenant and dealt with Respondent. In August 2012, Complainant filed a complaint with the ROC. 3. On August 31, 2012, ROC Inspector Jeff Wills inspected Respondent’s work and issued a Corrective Work Order (“CWO”) stating the following: CONTRACTOR TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING:

1. Air conditioner for the home was to be replaced with a 14 seer, contractor replaced with a 13 seer: At the time of the inspection, the inspector retrieved a Goodman model # of GPH1448H41AB and a serial # of [number redacted]. According to Goodman’s website, the packaged HVAC unit installed at the Complainants home is a 14 seer unit. No action required by the contractor. 2. Dual pane windows in the computer room and master bedroom have cracked and continue to crack: This was pointed out by the Complainant and observed by the inspector. Contractor to correct by appropriate means. 3. The side gate on the east side of the home was to be repaired, nothing was done to it: Contractor to correct by appropriate means. 4. Metal storage shed on west side of the home was to be replaced, nothing was done to it: Contractor to correct by appropriate means. 5. I have not been provided with a receipt or warranty of all the work performed at the home: Contractor to correct by appropriate means. 6. I have asked the contractor repeatedly for copies, he said he could not give me receipts as he had claimed the work performed on his taxes: This is per the Complainant as listed on the complaint.

At the time of the inspection, the Complainant added one item. Respondent was not present for the jobsite inspection

1. Chipping and peeling paint near the front entry windows and near or around bedroom windows at the front of home: This was pointed out by the Complainant to the inspector. Contractor to correct by appropriate means.

Respondent was not present at the inspection. Inspector Wills testified at the hearing and confirmed the CWO. He performed a pre-hearing inspection on January 14, 2013, and found the same conditions. 4. Respondent was ordered to make corrections to Item 2 (cracked window pane), Item 3 (side gate), Item 4 (storage shed), Item 5 (warranty paperwork), and additional Item 1 (chipping and peeling paint).[1] These items were the only ones addressed at hearing. Zeke Diaz (“Diaz”) accepted responsibility for all items except Item 2 (cracked window pane). 5. Maria Durazo testified that window replacement was a verbal agreement with Diaz, but only if there was enough money left over from the insurance proceeds to do the windows without extra cost to Complainant. 6. Diaz testified that he was close friends with Mrs. Durazo’s late husband, who had passed away shortly before the hailstorm that damaged the house. Diaz testified that wanted to help her out. Respondent installed the windows and, as Diaz testified, put much money into the project to do extras. Toward the end, Diaz wanted her to release Respondent from doing the shed and gate portion of the contract because of the extra work that had been done. He speculates that someone else damaged the windows and that is why Respondent is not responsible. 7. As far as the evidence shows, Respondent replaced the windows and is responsible for their workmanship. Complainant and Mrs. Durazo have stated that the windows are cracking due to defects. There is no evidence that the windows were damaged by others. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1)(prohibits abandonment of projects without legal excuse), A.R.S. § 32-1154(A)(3) by way of Arizona Administrative Code (A.A.C.) R4-9-108 (prohibits poor workmanship), and A.R.S. § 32- 1154(A)(23)(requires compliance with a CWO). The evidence does not show violation of A.R.S. § 32-1154(A)(1), but does show violation of the other two provisions. 3. The findings made above show that Respondent did not perform to workmanship standards and did not perform the corrections ordered by the CWO. This includes Items 2, 3, 4, 5, and added Item 1 of the CWO. 4. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on February 3, 2013. That prior record shows that Respondent has held the license since September 2010 and has not been disciplined. However, the license has been administratively suspended since October for non-renewal and since January 2013 for lack of bond. Thus, provisional revocation is warranted. 5. The appropriate sanction in this matter is to require Respondent to correct all items in the CWO except Item 1 (A/C unit) and 6 (receipts). If Respondent does not do so in a timely manner, the license should be revoked. Furthermore, a civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that License No: B.267969-R, held by BZD Construction & Remodeling, Inc., be revoked beginning the effective date of the Registrar’s Order until the Registrar receives, and accepts, written proof that Respondent has made the corrections noted in Conclusion of Law 5 above. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2012-4006 shall be closed. IT IS FURTHER RECOMMENDED that, along with the provisional revocation above, BZD Construction & Remodeling, Inc. pay a civil penalty of $150.00 to the ROC pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the ROC Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, February 4, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] With regard to Item 6 (receipts), the CWO is not clear. The item is listed under the heading “CONTRACTOR TO CORRECT BY APPROPRIATE MEANS” but all other items on that list have an individual “no action” or “correct by appropriate means” statement. Item 6 does not. The Administrative Law Judge finds that Item 6 is not required by the contract documents and is, therefore, a “no action” item, like Item 1. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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