ALJDEC

99F-M1369-ROC · Registrar of Contractors · 1999-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 27, 1999 APPEARANCES: Complainant : Harry Luckenbill appeared at the hearing on behalf of himself and Kay Luckenbill. Respondent : No one appeared on behalf of Wayne Lee Bailey dba Bailey Drywall. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ FINDINGS OF FACT 1. An evidentiary hearing was scheduled for 1:30 P.M., December 27, 1999 at the Office of Administrative Hearings in Phoenix, Arizona. Although having been given notice as required by applicable law, Respondent failed to appear either personally or by an authorized representative. Complainant was present and offered evidence in support of his complaint. 2. Complainants entered into a contract with Palm Harbor Homes for construction of a mobile home. Palm Harbor Homes, in turn, contracted with Respondent Wayne Lee Bailey dba Bailey Drywall to perform work on the exterior and interior walls of the home.

3. At all times relevant, Wayne Lee Bailey dba Bailey Drywall held a Class C-10 (Drywall) license through the Registrar of Contractors. The exterior work of which the Luckenbills have complained is more properly covered under a C-36 (Plastering) license. Respondent has exceeded the scope of its license by performing the work at issue. 4. On June 23, 1999, an Inspector with the Registrar of Contractors conducted an on site inspection of the Luckenbills’ home, in response to a complaint filed with the Registrar concerning labor performed by Respondent at Complainants’ home to the dissatisfaction of Complainants. The inspection resulted in a “Corrective Order” issued by the Inspector on June 23, 1999, wherein Respondent was directed to 1) have the exterior stucco surface repairs corrected by a properly licensed contractor, and 2) correct the interior drywalls with the correct color paint. 5. Mr. Luckenbill testified that Respondent has made satisfactory repairs to the interior drywalls in accordance with “Corrective Order” directive 2. The homeowner further testifies that Respondent’s efforts to correct the deficiencies to the exterior stucco surface have failed to rectify the problem. Complainant states that it will cost approximately $500.00 to replace ten (10) sunscreens damaged by Respondent in Respondent’s effort to make the necessary repairs. Mr. Luckenbill further notes that Bailey Drywall’s attempts to repair the exterior surface on two or three occasions since the issuance of the “Corrective Order” have resulted in significant cracking in the stucco, that the application of the stucco has sealed up the outside door to the water heater and that there are deficiencies in the top and bottom of the window garnishment resultant from the failed efforts to repair the hapless project. 6. Although the Registrar issued a Citation and Complaint on September 10, 1999, Respondent has not filed an Answer thereto, according to the records which have been provided to the Office of Administrative Hearings. CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 437 930 P.2d 508, 514 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 2. The weight and sufficiency of the evidence establishes that the work performed on this project by the Respondent subcontractor was deficient in workmanship and that Respondent’s attempts to repair and rectify the problem have resulted in an exacerbation of the condition. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3) and (23); specifically, Rule R4-9-108 (Workmanship Standards). 3. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) and (23) as charged in the Citation and Complaint. Respondent failed to repair the exterior stucco surface as directed by the Registrar’s “Corrective Order”, in a workmanlike manner. 4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person. 5. Respondent’s failure to effect a repair of the deficiency of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed. 6. Respondent is further advised that Respondent has exceeded the scope of its Class C-10 license by performing the stucco surface application and should refrain from such activity until it has obtained the requisite license through the Registrar of Contractors. Respondent is still further admonished to familiarize itself with A.R.S. ( 32-1154 (17) which gives as a basis for suspension or revocation of a contractor’s license, contracting beyond the scope of one’s current license or licenses.

RECOMMENDED ORDER Based upon the foregoing findings and conclusions, IT IS RECOMMENDED that complaint No. 99-1369 against Wayne Lee Bailey dba Bailey Drywall be sustained. It is recommended that the Class C-10 license held by Respondent be suspended on the effective date of the Order entered in this matter, the license to remain suspended until the Registrar of Contractors is provided credible written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact paragraph 5 above. It is further recommended that, should Respondent accomplish the required corrective work on or before the effective date of the Order issued by the Registrar, a suspension of Respondent’s license shall not be effectuated. It is yet further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-10 license be placed on disciplinary probation for a period of 90 days. The additional disciplinary penalty should commence on the effective date of the Order entered in this matter or the date upon which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. Set forth this 28th day of December 1999.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Michael P. Goldwater 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