ALJDEC decisions subject to certification as final

2013A-1232-ROC · Registrar of Contractors · 2013-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2013

APPEARANCES: Complainant appeared on his own behalf; Respondent did not appear.

WITNESSES: Scott Deering, ROC Inspector Scott Warga, ACSI Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship that allowed water intrusion with regard to construction work done by Respondent at Complainant’s house. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record, along with marked Exhibits A, B, C, and D. Testimony was presented from the 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 violations and recommending license revocation. FINDINGS OF FACT 1. Respondent was the holder of License No. B.192503-R, a general residential contracting license issued by the Registrar. The Qualifying Party on the license is Erlene Francis Durrant. The license has been inactive since January 2010.[1] 2. The evidence shows that in 2007 Complainant bought a spec home built by Respondent. Complainant has filed several complaints over the years against Respondent, but the complaint that is the subject of this case concerns water intrusion into the home. 3. ROC Inspector Scott Deering inspected the home in April 2013 and found that corrective work was needed. On April 16, 2013, he issued a Corrective Work Order (“CWO”) ordering Respondent to do the following: NOTE: License # 192503 issued to Custom Homes by Durrant LLC was inactivated on 1/19/2010 and cannot do or sub-contract recommended corrective work listed in this directive unless the license is re- activated.

Complaint # 1- Large amount of leaking around multiple window frames with damage to interior. Contractor to determine cause of water leaks at windows and correct by the appropriate means. Contractor to correct all associated water damage caused by window leaks.

Complaint # 2- Sealing of wooden header beams (corrective work), supposedly good for 25 years, already cracking. Contractor to correct by the appropriate means.

Respondent did not correct these issues, which were still present when Inspector Deering performed a pre-hearing inspection at Complainant’s house on November 6, 2013. 4. Complainant hired ACSI (American Construction Specialists & Investigations LLC) to perform an investigation to discover the source of the water intrusion. ASCI is a licensed general contractor that does home inspections. Its principal and Qualifying Party is Scott Warga and he performed the inspection of Complainant’s house and issued a report that is in the record as Exhibit C. It contains photographic evidence and states conclusions as to the cause of the water intrusion. The Administrative Law Judge finds Exhibit C to be credible and to carry weight. 5. The ACSI report finds 12 listed defects with regard to moisture intrusion at Complainant’s house, principally dealing with a vapor barrier under the stucco that stops short above wood headers at windows. The listed defects are verified by destructive testing and photographs of the interior of walls. They are also consistent with the problems that Inspector Deering suspected on his initial inspection. Additionally, Scott Warga testified persuasively at the hearing in support of the ACSI report. Exhibit C is proof of poor workmanship and code violations. 6. According to uncontested evidence, Respondent last performed work on Complainant’s house in December 2011, while its license was inactive. 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 A.R.S. § 32- 1154(A)(2) (requiring compliance with plans, specifications, and building codes), A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent failed to properly waterproof the house as codes and workmanship standards required and that the failure caused water damage to the house. Respondent failed to have the workmanship issues corrected, even after a CWO was issued by the ROC. Thus, the alleged violations are supported by the evidence. 3. In addition, Respondent performed work at Complainant’s home in December 2011 while its license was inactive. This is a violation of A.R.S. § 32-1154(A)(18) (prohibiting contracting while a license is suspended or inactive) as charged in the Citation and Complaint. 4. The evidence substantiates all four violations alleged in the Citation and Complaint. 5. As noted, Respondent’s license is currently inactive. Pursuant to A.R.S. § 32-1154(C), inactivation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license. The Administrative Law Judge finds that the appropriate sanction in this matter is revocation. 6. Respondent failed to appear at either inspection and at the hearing. This reveals a lack of responsibility for obligations as a contractor who is regulated by the ROC. Respondent’s license should be revoked in this matter. Complainant may then make a claim to the Fund for his actual damages caused by the violations. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.192503-R, held by Custom Homes by Durrant LLC, be revoked.

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, November 25, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on November 25, 2013. [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