ALJDEC decisions subject to certification as final

2016A-2423-ROC · Registrar of Contractors · 2016-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tammy Morse-Ory,

COMPLAINANT,

v.

Fosdick Enterprises Inc dba,

K F Builders,License No: 093472

RESPONDENT.

No. 2016A-2423-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2016

APPEARANCES: James Ory (Complainant) appeared on behalf of his wife Tammy Morse-Ory. Fosdick Enterprises Inc. dba, K F Builders (Respondent) was represented by its qualifying party Karl Fosdick.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Tammy Morse Ory is the owner/occupant of a residence located at 6736 West Camino De Oro, Peoria, Arizona 85383 along with her husband James Ory.

Respondent holds Arizona Contractor’s License No. 093472.

On July 8, 2016, Tammy Morse Ory filed a complaint with the Registrar alleging that Respondent had performed substandard work when constructing her new home. All told, the complaint contained 9 items.

The Registrar assigned investigator Timothy Pennington to investigate the complaint.

Pennington scheduled a jobsite inspection for August 4, 2016, which Complainant attended as did Karl Fosdick of Respondent and Mike Conklin of Universal Desert State Air, Respondent’s air-conditioning subcontractor. Pennington testified that Fosdick and Conklin both admitted that the air-conditioning units installed in the main houses were smaller than the air-conditioning units called for in the plans. Specifically, the architectural plans called for installation of two 5 ton units, but Conklin installed a 4 ton unit and a 3.5 ton unit without obtaining a change order. Pennington therefore substantiated that the installed air-conditioning units were undersized and a deviation from the plans. Pennington did not substantiate any of the other items in the complaint, which concerned drywall issues, painting issues and popping nails.

On August 8, 2016, Pennington sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 25, 2016.

You are hereby directed to correct the following violations by appropriate means:

A/C Main House Wrong size A/C units installed. Plans call for two 5 ton units to be installed, but a 4 ton and 3.5 ton was installed.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Pennington subsequently learned the issue had not been corrected and therefore referred the matter to the Registrar’s legal department for review.

On August 30, 2016, the Registrar issued a Citation containing two charges. Charge 1 reflected “[a] violation of A.R.S. § 32-1154(A)(2) (“Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

At hearing, Karl Fosdick testified that he was aware that Mike Conklin used smaller units than called for by either the plans or the contract Respondent had with Universal Desert State Air. He vehemently argued he should be able to rely on Universal Desert State Air, which is itself a licensed contractor, and believed that Respondent should not be liable for Universal Desert State Air’s failure to install what was contracted for.

Complainant testified that he had filed a complaint against Universal Desert State Air regarding the use of undersized air conditioners in the main house, which had not been responded to and resulted in a Default Decision and Order issued by the Registrar. That Decision was not made part of the record in this matter.

Pennington testified that the basis of the Registrar’s A.R.S. §32-1154(A)(2) violation was Respondent’s departure from the architectural plans for the home without obtaining a written change order.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Respondent conceded that its subcontractor installed 3.5 and 4 ton air conditioning units in Complainant’s’ main house rather than the two 5 ton units the plans specified. Accordingly, Complainant met the burden to prove a violation of A.R.S. § 32-1154(A)(2).

Regarding a violation of A.R.S. § 32-1154(A)(22), Respondent steadfastly refused to accept responsibility for its subcontractor not following the plans even though as a general contractor Respondent plainly had the obligation to supervise its subcontractor and either prevent a deviation or have a change order executed. Nonetheless, because Respondent has already paid a civil penalty in the related cases of 2014-4777-ROC and 2015-2959-ROC involving the same project, imposition of another civil penalty is not necessary.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Fosdick Enterprises Inc. dba, K F Builders, License No: 093472 for a period of one (1) day.

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 17, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors