ALJDEC decisions subject to certification as final

2014A-2453-ROC · Registrar of Contractors · 2014-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (“the Registrar”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General; Coletti’s Construction (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On August 12, 1996, the Registrar issued License No. B-116727-R for residential general construction to Respondent.[1] 2. On December 9, 1998, the Registrar issued License No. CR42.140811-D for dual roofing to Respondent.[2] 3. On both licenses, Respondent’s address of record is 1875 E. Suffock Ave., Kingman, Arizona 86409-1272.[3] 4. On or about September 9, 2013, Don van Pelt filed a complaint with the Registrar against Respondent, alleging that when it performed its contract to wash, coat, and repair the urethane roof on Mr. van Pelt’s residence at 2081 Bryce Circle, Lake Havasu City, Arizona 86406, Respondent departed from contract specifications by failing to lift and platform two air conditioning units. Mr. van Pelt also alleged that Respondent performed deficient work when it had cut a condensation drain line, resulting in flooding on the roof and interior damage.[4] Mr. van Pelt stated that when Respondent failed to respond quickly to his complaints of leaks, he contacted Craig Plumbing, who performed emergency repairs and replaced the condensation line. 5. Mr. van Pelt attached to the complaint that he filed with the Registrar a copy of his contract with Respondent.[5] The contract did not show Respondent’s business address, did not apprise Mr. van Pelt of his right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address. 6. The Registrar assigned Mr. van Pelt’s complaint to Investigator Cliff Corlett for investigation. Investigator Corlett performed a jobsite inspection and on October 22, 2013, issued a Corrective Work Order that directed Respondent within fifteen calendar days to correct by appropriate means the following: It appears that the Respondent[’s] repair work around the end of July, 2013 caused damage to the condensation line “P-Trap” on the house[’s] main air conditioning unit and was most likely the cause of the latest interior damage to [Mr. van Pelt’s] residence.

Also, the Respondent[’s] contract/proposal indicates that the A/C unit was to be “lifted and platformed” with 2 2x6’s. Contract does not state or limit “platforming” to one A/C unit. Neither unit was lifted and or platformed.

Respondent should, by appropriate methods, platform both A/C units. Respondent should perform water tests and properly remove and replace the temporary foam roof repairs installed by Craig Plumbing.

Respondent should, by appropriate methods repair or cause to be repaired the interior water damage matching surrounding areas as closely as possible. . . .[6]

7. The Registrar on its own motion issued a Citation and Complaint against Respondent based on Mr. van Pelt’s complaint. Respondent filed a timely written answer to the Citation and Complaint. 8. The Registrar referred its own motion complaint to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 9. On September 26, 2014, the Registrar issued a Notice of Hearing on its own motion Citation and Complaint, setting a hearing at the OAH on November 7, 2014, at 8:00 a.m. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. 10. An evidentiary hearing was held on November 7, 2014. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the hearing did not conclude until approximately 9:30 a.m., Respondent did not appear, through an authorized officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. 11. The Registrar submitted seven exhibits to establish the facts set forth above. The Registrar also presented the testimony of three witnesses: (1) Mr. van Pelt (telephonically); (2) Investigator Corlett (via videoconference from the Registrar’s Kingman office); and (3) Jose Gill, a staff attorney with the Registrar’s Legal Department. 12. Mr. van Pelt testified that before Respondent’s crew cut the condensation line, the interior of his house had only one small hole in the drywall near a window. Mr. van Pelt testified that he is not satisfied with Respondent’s drywall repairs. 13. Investigator Corlett testified that at the jobsite inspection, both Mr. van Pelt and Respondent’s representative stated that before the leak caused by the cut condensation line, the only damage to drywall in the house was in the rear of the house in the living room. Investigator Corlett testified that the air conditioning unit whose P-trap Respondent’s crew had cut was located directly over the bathroom and living room. 14. Mr. van Pelt testified that after Investigator Corlett issued the October 22, 2013 directive, Respondent’s workmen came out and performed some repairs. Mr. van Pelt testified that although the roof leaked during at least two major rainstorms, the roof has finally stopped leaking. 15. Investigator Corlett testified that he performed a compliance inspection on January 10, 2014. Respondent had tidied up the area around the air conditioner by applying more foam, but had not raised the air conditioning units. 16. Investigator Corlett testified that two drywall repairs were very visible in the living room ceiling and that one drywall repair was very visible in the bathroom ceiling.[7] Investigator Corlett testified that Respondent did not comply with workmanship standards in its drywall repairs to these areas. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[8] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable, and it is deemed to have received notice of the hearing.[9] 3. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[10] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[11] 4. The Registrar established that when Respondent cut the P-trap on Mr. van Pelt’s condensation line and when it left visible repairs in Mr. van Pelt’s living room and bathroom ceilings, Respondent violated the Registrar’s and industry workmanship standards. Therefore, the Registrar established cause to discipline Respondent’s licenses[12] under A.R.S. § 32-1154(A)(3),[13] namely A.A.C. R4-9-108.[14] 5. The Registrar established that Respondent failed to fully repair the interior drywall at Mr. van Pelt’s house and failed to platform the air conditioning units, as required by the Registrar’s October 22, 2013 directive. Therefore, the Registrar established cause to discipline Respondent’s licenses under A.R.S. § 32-1154(A)(22).[15] 6. The Registrar established that Respondent did not include all the terms required by A.R.S. § 32-1158(B)[16] in its contract with Mr. van Pelt because it did not include Respondent’s business address and did not advise Mr. van Pelt of his right to file a complaint with the Registrar for Respondent’s violations of A.R.S. § 32-1154(A). Therefore, the Registrar established cause to discipline Respondent’s licenses under A.R.S. § 32-1154(A)(12),[17] namely A.R.S. § 32- 1158(B). 7. If the Registrar disciplines either of Respondent’s licenses, A.R.S. § 32-1154(A)(20) requires that both licenses be disciplined.[18] / / / / / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent Coletti’s Construction, Inc.’s License Nos. B-116727-R and CR42.140811-D shall be suspended for three business days. It is further recommended that Respondent shall be required to pay the sum of $500.00 as a civil penalty for its violation of A.R.S. § 32- 1154(A)(22) pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final Order in this matter, the Registrar shall revoke Respondent’s licenses, effective on such 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 Respondent tenders payment of any outstanding prior civil penalty. 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 five days from the date of that certification. Done this day, November 21, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 1. [2] See the Registrar’s Exhibit 2. [3] See the Registrar’s Exhibit 1 at 6, the Registrar’s Exhibit 2 at 6. [4] See the Registrar’s Exhibit 3 at 1-2. [5] See id. [6] The Registrar’s Exhibit 4. [7] See the Registrar’s Exhibit 7 (photographs). [8] See A.R.S. § 32-1154(A). [9] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [10] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [12] Respondent’s CR42 license allowed it to perform the roofing work and its B license allowed it to repair the interior drywall. [13] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [14] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [15] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [16] A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. . . . . 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . [17] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [18] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.”

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