ALJDEC decisions subject to certification as final

2012A-538-ROC · Registrar of Contractors · 2013-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2013, at 1:00 p.m. APPEARANCES: Lydia Yanez (hereinafter “Complainant”) appeared on her own behalf. Lalama Building and Design Inc (hereinafter “Lalama”) appeared through its qualifying party, Shane Albert Lalama. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On or about July 17, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that “[w]ork has been completed at this site.” The Registrar treated this submission as a Notice of Compliance.

On or about July 18, 2012, Respondent paid the $250.00 civil penalty in accordance with the terms set forth in the Registrar’s June 8, 2012 Default Decision and Order.

On or about August 14, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that “[t]he work has not been completed.”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s June 8, 2012 Default Decision and Order. If it is determined that Respondent failed to comply with the terms of the Registrar’s June 8, 2012 Default Decision and Order, Respondent’s B.190466-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent fully complied with the terms of the Registrar’s June 8, 2012 Default Decision and Order, and all work performed meets minimum workmanship standards, no discipline shall be imposed upon Respondent’s B.190466-R License, and this matter will be closed.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

2. The Registrar’s June 8, 2012 Default Decision and Order provided, in pertinent part, as follows: IT IS ORDERED suspending Respondent`s license on the effective date of this Order (40 days after the mailing date, shown below), until the Registrar receives proof that Respondent has appropriately rectified the corrective work involved and detailed in the Complaint and the agency`s written directive. If Respondent properly corrects these specified items on or before the effective date of this Order, then Respondent`s license shall not be suspended, and this Citation and Complaint shall be closed.

Pursuant to A.R.S. § 32-1154(D), IT IS FURTHER ORDERED that Respondent pay $250.00 as a civil penalty to the Registrar. If Respondent fails to pay this civil penalty on or before 30 days after this Order`s effective date, the Registrar shall automatically revoke Respondent`s license on that date. The Registrar shall not issue any future or additional contractor`s licenses to any entity comprised of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent or any of the parties defined in A.R.S. § 32- 1101(A)(5) pays any and all outstanding civil penalties. Regarding the discipline ordered above, this Order is self- operative: Respondent must file with this Agency written confirmation that Respondent has properly complied with the requirements of this Order on or before July 18, 2012.

3. The February 16, 2012 Corrective Work Order provided, in pertinent part, as follows:

License # ROC 190466 issued to Lalama Building and Design Inc was suspended for non-renewal on 02/01/12 and cannot do or sub- contract the following corrective work until the suspension is lifted.

Obtain an electrical permit and all approved inspections from the local building authorities for the circuit to the laundry room.

1. Allegation: Compete new roof. The jobsite inspection found signs of roof leaks in the two east bedrooms. Shane Lalama of Lalama Building and Design Inc. claims that he only sealed the drip edges on the roof and no other roof work. The roof appears to be leaking in areas that he did not repair. No action required. 2. Allegation: Replace AC/furn all rusted from leaking inproper-install. The jobsite inspection found visible rust in the heating and cooling ducts and on the registers. Lalama claims that no work was done to the existing heating and cooling system except “freeing up” a couple of supply registers that were “stuck” to the wall. No action required. 3. Allegation: Fix problem on sewer & drain in side (all). The jobsite inspection found the toilets flushing (hall bathroom toilet had a noticeable gurgling noise) and the sinks draining except for the slow/no draining hall bathroom sink. Lalama claims that no plumbing work was done except replacing the master bathroom toilet. No action required. 4. Allegation: Repair or replace all problems in ceiling, walls, flooring. The jobsite inspection found a few hollow sounding ceramic floor tiles with a good bond (no grout cracks around the tile), the walls appear to have been recently painted and there appears to be several noticeable patches or repairs that were painted over, and the ceilings appear to have been recently painted and there appears to be several noticeable patches or repairs that were painted over. Lalama claims that he did not install the floor or paint anything. He claims that the previous tenant installed the floor tile and painted the walls and ceilings over the existing patches or repairs. No action required. 5. Allegation: Replace conduit for washer-buried approx 5”. The jobsite inspection found the electrical circuit between the electrical supply box and the laundry room (washer) was installed without a permit. Lalama claims that he contacted Just Energize It Electric LLC and Just Energize It Electric LLC installed the circuit. Contractor is to correct by appropriate means. Obtain an electrical permit and all approved inspections from the local building authorities for the circuit to the laundry room. 6. Allegation: Repair all foundation problems. The jobsite inspection found no visible or obvious foundation problems except that this “existing” house should have been built higher on this lot. Lalama claims that he did not work on the foundations. No action required. 7. Allegation: Grading where need. The jobsite inspection found that there is no positive drainage away from this house’s footings. The homeowner has placed sand bags along the foundation of the front side of the house including front entry door and around the side exterior door because of flooding into the house. There is water damage to the interior walls and flooring along the front of the house. There was a written agreement to correct the grading around the house and nothing appears to have been done. Contractor is to correct the grading around the house and to ensure that there is positive drainage away from the house footings according to code and correct the interior water damage by appropriate means. 8. Allegation: Live wire on southeast side of house. The jobsite inspection found taped “romex” electrical conductors on the southeast side of the house. The homeowner claims that Just Energize It Electric LLC taped the wire and was to return and correctly fix it but never returned. Contractor is to correct by appropriate means. 9. Allegation: Stucco repair caused by grading issue (flooded). The jobsite inspection found some stucco cracks wider than 1/16” and large cracks, spalling, and loose stucco near the earth in areas that may have been caused by flooding. Lalama claims that he stuccoed over the existing stucco in 2010. Contractor is to correct by appropriate means. 10. Allegation: Tiles are hollow- will crack soon. The jobsite inspection found some cracked ceramic floor tiles. SEE #4 ABOVE. No action required. 11. Allegation: Repair clothes line. The jobsite inspection found the metal clothes line posts leaning in toward one another. Lalama claims that he did not work on the clothes line. No action required. 12. Allegation: Front and back doors. The jobsite inspection found the front and back exterior doors weathered, peeling, and cracking due to water damage and flooding. The back door has mold along the bottom. Contractor is to correct/replace by appropriate means. 13. Allegation: Fowl oder from bathroom (main) surrounding walls. The jobsite inspection found no odor today inside the hall bathroom. The homeowner claims that odors come from the capped clean outs located in the ground at the west and south sides of the house. There is no odor today. No action required.

4. The assigned Registrar’s Inspector, Richard Allen (hereinafter “Inspector Allen”), testified that he conducted an onsite compliance inspection at Complainant’s residence on January 7, 2013. Inspector Allen testified that Lalama had failed to fully comply with the terms of the Corrective Work Order issued in this matter. Inspector Allen stated that the grading performed by Lalama is insufficient and that there is no positive drainage from Complainant’s residence. Inspector Allen testified that there is water damage present on the interior of the walls of Complainant’s residence that Lalama is responsible for correcting. Inspector Allen stated that there is still unacceptable exterior stucco cracking on Complainant’s residence that requires correction by Lalama.[1] 5. Complainant’s daughter, Lee Anne Yanez (hereinafter “Ms. Yanez”), testified that there was still insufficient water drainage away from Complainant’s residence and that Complainant’s residence still has water damage that has not been fully corrected by Lalama. Ms. Yanez stated that Lalama performed some minor cosmetic repairs but did nothing to resolve the drainage problems at Complainant’s residence.[2] 6. Complainant testified that she agreed with Inspector Allen’s testimony. Complainant presented photographs that showed cracked exterior stucco on her residence and the water damage in the interior of her residence.[3] Complainant stated that Lalama had performed some minor corrective work at her residence but that Lalama had failed to fully comply with the terms of the June 8, 2012 Default Decision and Order of the Registrar. Complainant testified that there is still insufficient drainage from her yard and that her residence continues to suffer unacceptable water damage during rains. Complainant stated that Lalama failed to correct all of the drywall and stucco cracking that had been caused by the water damage.[4] 7. Shane Albert Lalama (hereinafter “Mr. Lalama”) testified that Lalama had attempted to correct the problems with Complainant’s residence. Mr. Lalama stated that he felt Lalama had completed all of the necessary repairs at Complainant’s residence. Mr. Lalama testified that there had been major rains since the corrective work had been completed and that Complainant had suffered further water damage to her residence. Mr. Lalama stated that he disagreed with Inspector Allen’s testimony. Mr. Lalama testified that Lalama had given a “100%” effort to correct the drainage problems at Complainant’s residence. Mr. Lalama acknowledged that water was still penetrating into the interior of Complainant’s residence and that further corrective action is required.[5] 8. Administrative notice is taken of Lalama’s prior license record as reflected on the Registrar of Contractors’ public website on January 10, 2013. Such prior license record reflects that License No. B.190466-R of Lalama is current. Lalama’s License No. B.190466-R was suspended for a NSF check from March 28, 2012, through April 16, 2013, suspended for non- renewal from February 1, 2012, through April 16, 2012, and suspended for non-renewal from February 1, 2006, through February 10, 2006. 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. Lalama failed to correct the drainage problem at Complainant’s residence. Lalama failed to properly correct all of the interior and exterior cracking at Complainant’s residence. Lalama failed to correct all of the interior and exterior water damage at Complainant’s residence. This Tribunal concludes that Lalama failed to comply with the terms of the June 8, 2012 Default Decision and Order of the Registrar. RECOMMENDed order ON COMPLIANCE HEARING In view of the foregoing, it is recommended that License No. B.190466- R of Lalama shall be immediately suspended until the Registrar of Contractors receives and accepts written proof that Lalama has fully complied with the terms of the June 8, 2012 Default Decision and Order of the Registrar. 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, January 18, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/8/13 Hearing Record (hereinafter “H.R.”) at 6:58-16:32. [2] H.R. at 18:20-22:06. [3] See Exhibit Nos. C-1 through C-24. [4] H.R. at 22:30-35:00. [5] H.R. at 35:06-41:14.

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