ALJDEC decisions subject to certification as final

2013A-4181-ROC · Registrar of Contractors · 2014-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2014

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier; Respondent was represented by its President and Qualifying Party Denzil Dogka.

WITNESSES: Patricia Buchanan, Homeowner Denzil Dogka

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This disciplinary action is brought against Respondent based on a complaint filed by Patricia Buchanan about remodeling work done by Respondent at her house. The Citation and Notice of Hearing issued by the Registrar of Contractors (“Registrar” or “ROC”) alleges violations of failure to comply with building codes, failure to meet workmanship standards; failure to comply with a Corrective Work Order; and failure to use a contract that meets statutory minimums. Respondent conceded a violation of the building code because he did not obtain a permit, and conceded a violation of the ROC statutes by failing to use a contract that met minimum statutory requirements. He also, by implication, conceded workmanship violations by not objecting to a Corrective Work Order (“CWO”) issued by the ROC that found poor workmanship and by stating that he is willing to perform the three corrective work items that remain. He denied that he failed to comply with the CWO without valid justification. He maintains that he could not have proceeded further with corrective work until the homeowner chose materials for the work. This tribunal entered the ROC’s marked Exhibits 1, 2, and 3 into the record. 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 as noted below and recommending provisional suspension and a civil penalty. FINDINGS OF FACT 1. Respondent is the holder of License No. B.251505-R, a general residential contractor’s license issued by the ROC. It authorizes Respondent to perform residential construction and remodeling and was the license by which Respondent performed the work at issue in this complaint. Denzil Dogka is the Qualifying Party on the license. He is also a principal for licenses B-1.260285-C and B-2.248103-C, which are commercial licenses also held by Respondent. 2. In mid-2012, Patricia Buchanan (“Homeowner”) hired Respondent to perform a remodeling job. Respondent estimated the work and then entered into a verbal agreement with Homeowner. The work was completed about one month later. Homeowner’s complaint alleges that the contract price was $19,792.70 and that she paid Respondent $23,839.32. It also alleges workmanship issues and other problems.[1] 3. After a jobsite inspection, ROC Inspector Beau Cruz issued a CWO on March 13, 2013, that found poor workmanship with regard to nine of the eighteen items listed in the complaint. One of the items was a failure to obtain a building permit from the local building authority. Another item concerned a scratched ceiling fan that needed to be corrected. And two other items concerned a vanity cabinet that was damaged and not properly installed, and window blinds that were damaged. Respondent was ordered to correct the nine deficient items within 15 days of the CWO.[2] 4. Respondent corrected six of the nine items, including the building permit failure.[3] With regard to the other three items described above, Denzil Dogka testified that Homeowner was supposed to go to Home Depot or Lowes and pick out materials for installation. He intended to replace the ceiling fan, vanity cabinet, and blinds when Homeowner chose the materials. Homeowner testified that she understood that Respondent was supposed to do all the work, not her. Thus, she did not intend to pick out, pay for, and deliver the materials, even if Respondent later reimbursed her. The Administrative Law Judge concludes that there was a miscommunication between Respondent and Homeowner that was never clarified. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Notice of Hearing.[6] Complainant has met that burden. 2. The Citation and Notice of Hearing alleges violations of A.R.S. § 32-1154(A)(2) (prohibiting departure from plans, specifications, or building codes); A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), A.R.S. § 32-1154(A)(13) (prohibiting failure to comply with ROC statutes) regarding minimum elements of contracts as prescribed in A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). These will be addressed in turn. 3. At hearing, Respondent’s representative conceded that Respondent should have obtained a building permit before starting the work and did not do so. Thus, a violation of A.R.S. § 32-1154(A)(2) is found. The evidence shows that this problem was later corrected. 4. The evidence also shows that Respondent violated A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108, for poor workmanship on nine of the eighteen items in the complaint. Some, but not all, of the items were later corrected. 5. Respondent conceded violation of A.R.S. § 32-1154(A)(13) regarding required minimum contract elements, one of which is that contracts of more than $1,000 must be written. 6. Finally, A.R.S. § 32-1154 (A)(23) requires licensed contractors to comply with CWOs unless they have “valid justification” not to do so. Respondent did not show that there was valid justification to fail to correct the three items: ceiling fan, vanity cabinet, and window blinds. As the contractor who was issued a CWO, compliance with that order was Respondent’s responsibility and could not be passed off to Homeowner. Respondent should have timely followed up with Homeowner, in which case the miscommunication would have been cleared up. Respondent did not timely comply with the CWO. 7. Administrative notice is taken of Respondent’s prior license record for License No. B.251505-R as reflected on the ROC’s public website on February 21, 2014. That prior record shows that Respondent has held the license since 2008 and has never been disciplined. This is a good record. 8. The appropriate outcome for this matter is to: (1) order Respondent to finish the corrective work within a reasonable amount of time and (2) order Respondent to provide proof of compliance with the statutory minimum elements. If Respondent does not do so then its license should be suspended until it does. Also, a moderate civil penalty is warranted for failing to comply with the CWO. 9. Finally, the Citation and Notice of Hearing alleges violation of A.R.S. § 32-1154(A)(21) (prohibiting having a person on a license who has also been on a license that is suspended or revoked), but only if there is a suspension or revocation of the residential license. As far as the Administrative Law Judge’s recommendation goes, there is no suspension or revocation of the license at this time. Thus, no violation of A.R.S. § 32- 1154(A)(21) is found. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.251505-R, held by A Baja Facility Service, Inc. be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has (1) corrected items 9, 12, and 15 of the CWO issued in this matter as described above, and (2) has created a form of contract that complies with A.R.S. § 32-1158(B). 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 No. 2013-4181 shall be closed. IT IS FURTHER RECOMMENDED that, along with the provisional suspension above, A Baja Facility Service, Inc pay a civil penalty of $250.00 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 21, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit 1, Attachment 4. [2] See Exhibit 1, Attachment 6. [3] This was verified by Inspector Cruz at a pre-hearing inspection. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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