ALJDEC

99F-H0263-ROC · Registrar of Contractors · 2000-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On January 27, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Raymond Ringley appeared on his own behalf. Scott Coker Ellsworth appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Raymond Ringley (the “Complainant”) is the owner of a home (the “Home”) located at 3135 N. Stewart St., Kingman Arizona. Scott Coker Ellsworth is the Respondent’s owner and qualifying party. The Respondent built the Home.

2. On or about May 13, 1999, the Complainant filed a Complaint with the Registrar of Contractors (“ROC”) stating that the Home required paint and patch work. See Complaint, dated May 13, 1999.

3. On or about May 28, 1999, ROC Inspector Jim Boyette inspected the Home. On or about June 9, 1999, ROC Inspector Boyette issued a Corrective Work Order (“CWO”) requiring the Respondent to correct the following items: Touch up paint as needed on outside and inside of house. Replace grout near front door with proper color material. Caulk front edge of tub in master bath. Remove rust spots in kitchen sink or replace sink.

See CWO, dated June 9, 1999. Inspector Boyette required that the Respondent complete the corrective work within 15 days.

4. At the hearing in this matter, Mr. Ellsworth testified that the Respondent is located in Arroyo Grande, California. Mr. Ellsworth testified that it was very difficult to perform the corrective work from over 400 miles away. Mr. Ellsworth testified that many of the subcontractors that performed the initial work on the Home are no longer in business. Mr. Ellsworth further testified that local Kingman subcontractors have little incentive to perform minor corrective work on the Home because they already have more lucrative contracts to complete. Mr. Ellsworth testified that he did his best under the circumstances to complete the corrective work.

5. On December 7, 1999, the Complainant amended his Complaint to include a problem with a “buckling” in the Home’s roof. See Complaint, dated December 7, 1999.

6. On January 21, 2000, ROC Inspector William Redman inspected the Home. At the hearing in this matter, Inspector Redman testified that there are still four or five minor problems at the Home. Inspector Redman testified that there is a knot in the front porch hand rail that requires painting. Inspector Redman testified that a joint in the wooden column or post on the front porch requires caulking. Inspector Redman testified that the upper right front corner of the Home requires some minor stucco patching.

7. Inspector Redman further testified that the sealant between the tile and baseboard in the front entry way of the Home must be replaced. Inspector Redman also testified that “the paper let go of the drywall for about 4 inches” in the Home’s garage. Finally, Inspector Redman testified that the Home’s roof was within industry standards.

8. Mr. Coker Ellsworth testified that the remaining items in the CWO should be corrected within the next five days. Mr. Ellsworth submitted a letter from Sanderson’s Painting showing that the knot would be painted and the post would be caulked. See Respondent’s Exhibit D.

9. Upon review of ROC Inspector Redman’s testimony, the undersigned Administrative Law Judge finds that the Respondent failed to perform in a professional and workmanlike manner regarding the items listed in the CWO.

10. Upon review of ROC Inspector Redman’s testimony, the undersigned Administrative Law Judge finds that the Respondent failed to correct some of the CWO’s items within the 15 day corrective period. The undersigned Administrative Law Judge further finds that the Respondent’s excuses (for failing to perform the corrective work) are unjustified. The Respondent has had over six months to complete the corrective work. However, the undersigned Administrative Law Judge further finds that the remaining corrective work is minor in nature.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact ## 2, 3, 6, 7 and 9.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7). The Respondent has done a wrongful act by not correcting all of the CWO items in a timely manner. However, the corrective work is minor in nature. Accordingly, the undersigned Administrative Law Judge concludes that the Complainant has not been “substantially injured.” See A.R.S. §32-1154(A)(7).

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(23) as set forth in Finding of Fact # 10. However, the Respondent has attempted to correct the remaining minor corrective work.

5. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class B- license pursuant to A.R.S. §32-1154. The undersigned Administrative Law Judge further concludes that grounds exist to impose a civil penalty against the Respondent pursuant to A.R.S. §32-1154(D).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B- license be suspended until the Registrar receives proof that the Respondent has caused a

properly licensed contractor to perform remedial work on the following CWO items: 1. The knot in the front porch hand rail requires painting. 2. The joint in the wooden column of the front porch requires caulking. 3. The upper right front corner of the Home requires some minor stucco patching. 4. The sealant between the tile and baseboard in the front entry way of the Home must be replaced. 5. The paper that “let go of the drywall for about 4 inches” in the Home’s garage must be repaired.

It is further recommended that if the properly licensed contractor successfully accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. The undersigned Administrative Law Judge further recommends that the Respondent pay a $50.00 civil penalty to the ROC pursuant to A.R.S. §32- 1154(D). The failure by the Respondent to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date.

Done this day, February 4, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of February, 2000, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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