ALJDEC decisions subject to certification as final

2012A-539-ROC · Registrar of Contractors · 2013-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: January 28, 2013 APPEARANCES: Complainant Lynn Degenhart was represented by Dan Oeller. Respondent Rutherford Family Construction Inc was represented by Brent Rutherford, its Qualifying Party ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.263351-D to Rutherford Family Construction Inc (“Respondent”). Lynn Degenhart (“Complainant”) contracted with Respondent to do a complete stucco resurface of his residence at 1001 Riverfront Drive, Bullhead City, Arizona. Complainant filed a Complaint to the Registrar against Respondent alleging the work completed was not acceptable. On February 23, 2012, Cliff Corlett, the assigned inspector, issued a Corrective Work Order including the following terms: a. Cracks telegraphing through the color coat, all walls, ceilings, and sea wall — It was observed that some of the crack repairs Respondent made could be telegraphing through the finish stucco coat or that it was the variations in the final stucco color coat. Respondent was instructed to determine the cause and correct by appropriate methods. b. Variation of color, not consistent — While some degree of variation is expected in any stucco application, the variation in this application was excessive. Respondent was instructed to correct by appropriate methods. c. Wall between the neighbor and Complainant had defects at high points — It appeared Respondent’s scaffold may have been too close to the house and left some irregularities in the dash finish. Respondent was instructed to correct by appropriate methods. d. Wall stucco texture not applied consistently — The new stucco finish appeared to be a typical dash application. No action was required by Respondent. e. Stucco cracking on property line wall — Typical hairline cracks were observed. No action was required by Respondent. f. Overspray on windows and wrought iron — Complainant acknowledged the overspray was corrected prior to the inspection. g. Property not cleaned up — Complainant identified a planter Respondent used to dispose of construction debris. Respondent was instructed to properly dispose of all construction debris. h. Lighting not re-installed — Respondent took down all of the exterior lights during the course of performing the stucco work and were not replaced. Respondent was responsible for replacing all of the light fixtures with the work being performed by a properly licensed contractor. In March 2012, following the Corrective Work Order, Respondent retextured the entire house and reapplied a color coat to the stucco. On May 31, 2012, the Registrar issued a Citation and Complaint that charged Respondent with possible violations of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(23). After Respondent failed to file a timely written answer, the Registrar issued a Default Decision and Order finding that, pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission of the charge contained in the Citation and Complaint. The Registrar issued an Order Setting Compliance Hearing, providing in relevant part as follows: On August 17, 2012, the Registrar issued a Default Decision and Order in this matter providing that Respondent’s KB-2.263351-D License would be suspended on the effective date of the Order and remain suspended until Respondent submitted written proof to the Registrar that Respondent had appropriately rectified the corrective work involved and detailed in the Complaint and the Registrar’s Corrective Work Order. If Respondent submitted written proof that it had fully rectified the corrective work involved and detailed in the Complaint and the Registrar’s Corrective Work Order to the Registrar, and the Registrar accepted such proof, then Respondent’s KB-2.263351-D License would not be suspended. The Order further required Respondent pay a $250.00 civil penalty to the Registrar on or before the expiration of thirty (30) days after the effective date or risk the revocation of its KB-2.263351-D License. The Default Decision and Order had effective date of September 26, 2012. On October 1, 2012, the Registrar suspended Respondent’s KB- 2.263351-D License in accordance with the terms set forth in the August 17, 2012 Default Decision and Order. On or about that same day, Complainant submitted a Claim with the Residential Contractors’ Recovery Fund. On or about October 29, 2012, Respondent paid the $250.00 civil penalty assessed by the Registrar. On or about that same date, Respondent submitted written correspondence in this matter with the Registrar maintaining that “the issues determined to be incorrect by the Inspector have been corrected. If Complainant disagrees, [Respondent] would ask for a compliance hearing to identify any defects.” The Registrar treated this submission as a Notice of Compliance. On or about November 13, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Respondent “has not corrected any of the issues that ha[ve] been submitted and documented to the ROC.” Upon review and consideration, and with good cause appearing, IT IS ORDERED that this matter be set for a Compliance Hearing in the expedited course of docketing in the Kingman area. At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent failed to fully comply with the Registrar’s directives. If it is determined that Respondent failed to fully comply with the Registrar’s directives, Respondent’s KB-2.263351-D License shall remain suspended, and the Residential Contractors’ Recovery Fund shall proceed with its review of the pending Recovery Fund claim. If it determined that Respondent has fully complied with the terms of the August 17, 2012 Default Decision and Order and has performed the necessary corrective work and such meets minimum workmanship standards, then the suspension imposed against Respondent’s KB-2.263351-D License shall be lifted and this matter closed.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issue of whether Respondent had complied with the Registrar’s Default Decision and Order. On January 28, 2013, a compliance hearing was held. Respondent presented the testimony of Brent Rutherford, its Qualifying party. Complainant submitted 47 exhibits and testified on his own behalf. Inspector Corlett testified that he conducted a pre-hearing inspection. As to the items on the Corrective Work Order, Inspector Corlett made the following observations: a. Cracks telegraphing through the color coat, all walls, ceilings, and sea wall — Excessive cracking was still evident in the stucco. b. Variation of color, not consistent — The stucco had less white places, but excessive variations of color were still evident in the stucco. c. Wall between the neighbor and Complainant had defects at high points — No defect was observed. d. Wall stucco texture not applied consistently — The Corrective Work Order did not require any action by Respondent. e. Stucco cracking on property line wall — The Corrective Work Order did not require any action by Respondent. f. Overspray on windows and wrought iron — Overspray was observed on the wrought iron and the air conditioner unit. g. Property not cleaned up — The planter did not have any construction debris in it. h. Lighting not re-installed — The light fixtures had been reinstalled. Respondent admitted it did not perform any work on Complainant’s property following the Default Decision and Order. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. Such prior license record reflects that on February 15, 2013, Respondent’s license was suspended due to lack of compliance. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s Default Decision and Order or that Complainant failed to provide reasonable access for it to do so. See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). As the Registrar’s Order Setting Compliance Hearing informed the parties, the only issue at the compliance hearing was whether Respondent had complied with the Registrar’s Default Decision and Order. Respondent argued it had completed the required corrective work prior to the Default Decision and Order was entered, and therefore, Respondent did not need to complete any additional work following the Default Decision and Order. Respondent failed to prove by a preponderance of the evidence that it complied with the Registrar’s Default Decision and Order or that Complainant failed to provide reasonable access for it to do so. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar immediately suspend Respondent Rutherford Family Construction’s License No. KB-2.263351-D until it has provided to the Registrar, and the Registrar has accepted, evidence to establish that it complied with the Registrar’s Default Decision and Order by performing the corrective work. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it complied with the Registrar’s Default Decision and Order, the Registrar may close the Complaint in Case No. 2012- 539. 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 the date of that certification. Done this day, February 19, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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