ALJDEC decisions subject to certification as final

2012A-4959-ROC · Registrar of Contractors · 2013-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2013, at 1:00 p.m. APPEARANCES: Sally Rosenbloom’s husband, Donald Rosenbloom, was added as a named Complainant at the onset of the scheduled hearing. Sally Rosenbloom and Donald Rosenbloom represented themselves at the scheduled hearing. G S D L LLC (hereinafter “GSDL”) was represented by its owner and qualifying party, Bryan McKay Moody. 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 GSDL is the holder of License No. B.272072-R issued by the Registrar of Contractors. This is a residential matter where on or about March 30, 2012, GSDL agreed to perform extensive remodeling of Complainants’ swimming pool and yard, including but not limited to the removal and replacement of the swimming pool plaster, the construction of a water feature, the construction of an outdoor fireplace, the construction of a bridge structure, and landscaping and grading work. During the course of construction, GSDL removed the tile from Complainants’ patio, damaged Complainants’ swimming pool deck, damaged Complainants’ landscaping, damaged Complainants’ front fence, and damaged the support posts for Complainants’ patio roof. GSDL’s representative then informed Complainants that he had decided to pursue a different type of career and abandoned the construction project, leaving Complainants with a damaged residence and an unfinished construction project. Complainants repeatedly requested GSDL to return to their residence to properly repair the damages to Complainants’ residence and complete the agreed upon construction project. When GSDL failed to comply with Complainants’ repeated requests, Complainants filed a formal Complaint against GSDL with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mark Alyea (hereinafter “Inspector Alyea”), conducted an onsite inspection. Inspector Alyea issued a written Corrective Work Order on November 8, 2012, directing GSDL to perform designated corrective work on Complainants’ residence. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct by appropriate means the following [:]

1. The contractor needs to complete the [contract] that he entered into between himself and the complainant, on March 30, 2012. 2. Correct the sprinkler system and valves at the north side of the backyard. It appears that these items were destroyed when the dirt was removed. 3. The upper portion of the pool was not cut to accommodate the new flagstone coping and cool deck. 4. New patio post[s] need to be installed [;] at the inspection the existing post[s] were half on and half the patio slab. 5. The north fence wall needs a masonry cap on top and the street side needs stucco. 6. In front of the north wall in the front yard there is a water leak.

On December 13, 2012, the Registrar of Contractors issued a Citation and Complaint charging GSDL with possible violations of A.R.S. § 32- 1154(A)(1),[1] A.R.S. § 32-1154(A)(3),[2] namely A.A.C. R4-9-108,[3] and A.R.S. § 32-1154(A)(23).[4] Testimony of Registrar Inspector Mark Alyea Inspector Alyea testified that he performed a pre-hearing inspection at Complainants’ residence on October 9, 2013. Inspector Alyea stated that GSDL had performed no corrective work at Complainants’ residence. Inspector Alyea stated that the water leaks at Complainants’ residence have increased in volume. Inspector Alyea testified that he was most concerned about the patio roof support posts that GSDL damaged during its construction work at Complainants’ residence. Inspector Alyea stated that the patio roof support posts have been damaged to the point that the posts are hanging from the patio roof. Inspector Alyea testified that the broken patio roof support posts presented a highly dangerous situation. Inspector Alyea testified that at the very least, GSDL should have returned to Complainants’ residence and corrected the damaged patio roof support posts. Inspector Alyea opined that the patio roof could collapse and “kill somebody.” Inspector Alyea’s testimony is found to credible. Testimony of Sally Ann Rosenbloom Sally Ann Rosenbloom (hereinafter “Mrs. Rosenbloom”) testified that Roy Brown (hereinafter “Mr. Brown”) represented himself as being the sole owner of GSDL. Mrs. Rosenbloom stated that Complainants were under the impression that they were dealing solely with Mr. Brown. Mrs. Rosenbloom testified that Complainants did not have any contact with Bryan McKay Moody (hereinafter “Mr. Moody”) until after Complainants filed a complaint against GSDL with the Registrar of Contractors. Mrs. Rosenbloom testified that Mr. Brown utilized a bobcat in Complainants’ yard. Mrs. Rosenbloom stated that Mr. Brown “completely destroyed” Complainants’ yard and damaged the patio support posts while driving the bobcat in Complainants’ yard. Mrs. Rosenbloom testified that after Mr. Brown destroyed Complainants’ yard and damaged the support posts for Complainants’ patio roof, Mr. Brown informed Complainants that he was “going out of business” and abandoning the construction project. Mrs. Rosenbloom testified that GSDL performed no corrective work at Complainants’ residence in response the Corrective Work Order. Mrs. Rosenbloom denied that Complainants refused access to GSDL to perform corrective work at Complainants’ residence. Mrs. Rosenbloom’s testimony is found to be credible. Testimony of Donald Rosenbloom Mr. Rosenbloom testified that all of Complainants’ dealings were with Mr. Brown. Mr. Rosenbloom opined that GSDL had aided and abetted Mr. Brown to utilize GSDL’s contractor’s license to perform unlicensed contracting work at Complainants’ residence. Testimony of Bryan McKay Moody Mr. Moody testified that Mr. Brown was a foreman for GSDL. Mr. Moody denied that Mr. Brown had any ownership interest in GSDL. Mr. Moody stated that GSDL had stopped work at Complainants’ residence because it had not been paid in accordance with the parties’ construction construct. Mr. Moody denied that GSDL had allowed Mr. Brown to utilize GSDL’s contracting license to perform unlicensed contracting work at Complainants’ residence. Mr. Moody acknowledged that Mr. Brown resigned his employment position with GSDL and accepted employment with a swimming pool company. Mr. Moody testified that GSDL had contacted Complainants and offered to correct the damaged patio support posts if Complainants would agree to pay for the cost of materials. Mr. Moody stated that Complainants refused to pay for the cost of materials and GSDL was unable to perform any corrective work at Complainants’ residence. Mr. Moody asserted that Complainants had been abusive towards GSDL and that Complainants were attempting to gain the performance of construction work that Complainants had not paid for. Mr. Moody testified that Complainants had breached their construction agreement with GSDL. Mr. Moody stated that GSDL had not been fully paid for the construction work that GSDL performed at Complainants’ residence. Administrative notice is taken of GSDL’s prior license record as reflected on the Registrar of Contractors’ public website on October 23, 2013. Such prior license record reflects that License No. B.272072-R of GSDL was suspended until compliance on January 29, 2013. License No. B.272072-R of GSDL was suspended for a Recovery Fund Credential on September 26, 2013. License No. B.272072-R of GSDL was suspended for non-renewal on May 1, 2013. License No. B.272072-R of GSDL had previously been suspended for lack of bond from March 15, 2013, through April 2, 2013, and had been suspended for lack of bond from February 6, 2012, through July 12, 2012. 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. GSDL’s employee damaged Complainants’ landscaping, damaged the support posts for Complainants’ patio roof, and performed assorted demolition work at Complainants’ residence. GSDL’s employee then informed Complainants that he was “going out of business” and abandoning the construction project, leaving Complainants’ with an unfinished construction project and a residence with broken patio roof support posts. GSDL did not return to Complainants’ residence to perform any corrective work on Complainants’ residence. This Tribunal concludes that GSDL violated the charged provision of A.R.S. § 32-1154(A)(1). 4. GSDL damaged the support posts of Complainants’ patio roof during its construction work at Complainants’ residence. The broken patio roof support posts present a health and safety hazard to Complainants. GSDL damaged Complainants’ sprinkler system during its construction work at Complainants’ residence. The damage has not been corrected and the water leaks have increased in volume. This Tribunal concludes that GSDL violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 5. GSDL damaged Complainants’ patio support posts and abandoned the construction project leaving a health and safety danger in Complainants’ residence. GSDL performed no corrective work at Complainants’ residence in response to the Corrective Work Order. This Tribunal concludes that GSDL violated the charged provision of A.R.S. § 32-1154(A)(23). RECOMMENDed order In view of the foregoing, it is recommended that License No. B.272072- R of GSDL shall be immediately revoked. It is further recommended, in addition to the above-provided penalties, if any, that GSDL pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by GSDL to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of GSDL’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with GSDL, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, October 25, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other 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. [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [3] 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.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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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