ALJDEC

00F-0520-ROC · Registrar of Contractors · 2000-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2000. APPEARANCES: Monica and Eric Wambaugh represented themselves. Bruce Wiegand, President of Sun Craft Quality Builders, represented Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ The issues in this case concern Respondent’s failure to complete work in a workmanlike manner, Respondent’s doing of a wrongful act resulting in substantial injury to Complainants, and Respondent’s failure to take appropriate corrective remedial action after being instructed to do so through the Registrar’s corrective work order. The Complainants have sustained their burden of proof in this case to show that Respondent’s work fell below administrative standards and that Respondent failed to comply with a corrective work order. FINDINGS OF FACT 1. On June 8, 1998, Complainants Eric and Monica Wambaugh (hereinafter Complainants) entered into a contract with Respondent Sun Craft Quality Builders to build an addition and complete other remodeling on Complainants’ home located at 11600 North 99th Street in Scottsdale, Arizona. 2. At the time the contract was entered into, Respondent estimated that the project would take approximately six months to complete. The six months came and went and the project was not finished. Several components of the work completed by Respondent fell below the standard of workmanship set by administrative regulation. Complainants noticed several problems with the work that had been done. Relying on Respondent’s representations that the substandard portions of the work would be corrected, Complainants patiently awaited the corrections. 3. By August, 1999, it became obvious to Complainants that the corrections that they sought either would not be made or, if made, would not be made correctly. As a result, on August 17, 1999, Complainants initiated this complaint. 4. Mr. Lewis King, an inspector from the Registrar of Contractors office was assigned to the case. His testimony regarding his training and experience in all phases of contracting demonstrates his qualifications to testify regarding whether work is completed in a professional and workmanlike manner, the standard enunciated in A.A.C.R4-9-108. 5. With the Complainants and Respondent present, Mr. King made his initial inspection of the job site on November 2, 1999. At the hearing in this matter Mr. King testified extensively regarding the many instances of Respondent’s unprofessional and nonworkmanlike construction that he observed at that November 2, 1999 inspection. These problems were found in both the exterior and interior work done in the home. As to the problems on the exterior, Mr. King found:

F. The paint repairs to the front entry of the home did not match the extent paint of the home; G. The courtyard stucco stains were not painted; H. The backyard patio column was not painted at the bottom; I. There was overspray on the rear of the house; J. The family room chimney top was not painted; K. The stem wall of the garage addition completed by Respondent was not painted; L. The back gate dead bolt did not latch due to faulty installation; M. A hose bib which had been installed by Respondent stuck excessively out of the wall; N. A part of the landscape brick border was damaged by Respondent and not repaired; O. The concrete work done to expand the driveway had myriad problems, including being poured at a level higher than the existing driveway, unacceptable patches, gouges, honeycombed edges, rough finish, and poorly finished control joints; P. The concrete slab at the electrical panel was improperly poured causing it to slope toward the house; Q. The new concrete slab at the entrance fell below standard because it, too, was sloped toward the house, was poured at a different height than the existing slab, and trapped water at the stem wall; R. Respondent removed and then failed to replace two patio screen doors and certain window screens. S. Paint was oversprayed onto the wrought iron fence; T. The alder front entry door had many problems, such as loose door hardware, dead bolt improperly bored and set into the door causing it to be on an angle, extensive overcuts into the wood and improperly filled in areas on the door, splinters around the front door handle holes, and paint overspray on the exterior of the door; U. Paint overspray on the garage cabinets; V. The parapet of the new garage added by Respondent was higher than the existing parapet walls; W. The roofing on the addition and garage was applied incorrectly, virtually ensuring failure of the roof in those areas, and necessitating substantial repairs in order to correct the problems; X. Termite tunnels had developed on the north side of the new house addition and there was no proof of required pretreatment of the foundation under that new addition. 6. Problems were also found with several parts of the interior remodeling, including: A. The wet bar wood floor patches were not installed so as to match existing wood floor; B. Kitchen countertop outlets were not installed to code; C. There was damage to existing saltillo tiles in the process of work being done on cabinets D. The sliding glass doors in the nook area were poorly installed, having paint overspray, bent tracks and allowing grout to get in between the sliding rails; E. The sliding glass doors were further damaged during Respondent’s subcontractor’s attempts to repair the doors; F. In the nursery, the texture and paint did not match extent texture; G. In bathroom number 1, the tiled vanity top was too shallow, allowing the tile to overhang the cabinet; faucet hardware was not uniformly installed, and the floor tile was oversprayed with paint; H. In the masterbath, the floor tile was oversprayed with paint, there was grout left on the tiles, the tile was not sealed; there was low water pressure, the tub handles were not installed, the vanity top was not sealed, had cracked grout, and again the vanity top was too shallow, allowing the tile to improperly overhang the cabinets, I. In bathroom number 3, the vanity top was again too shallow, allowing tile to overhang the cabinets, there was low water pressure, and the bath tub drained too slowly; J. In bathroom number 4, Respondent installed but failed to replace a temporary sink and faucet that did not match the other bathrooms and the fan did not work; K. In the office of the home, the wood floor patches did not match the existing wood floor; L. In the hallway, the wood floors were not sealed; M. In the gameroom, the sliding glass doors had bent tracks, scratches on the glass, construction debris were left in the tracks, and missing screens; N. In the utility room, the Respondent failed to install a light though he had contracted to do so, the floor was not sealed, and the drywall repairs were not painted; O. In the girls’ playroom, there was paint overpspray; P. In the girls’ bedroom, there was bowing in the drywall, the corner had been improperly framed, there were leaks in the roof, and grout left on the window frame. 7. Mr. King issued a corrective work order to Respondent on November 30, 1999. Despite the passage of almost 5 months, at the time of the hearing in this matter, many of the corrections, including the more serious ones regarding the roofing, the parapet, the framing, the front door, the non- functioning sliding glass doors, and the water pressure, had either not been repaired or if repaired, were repaired improperly. 8. Remarkably, the Respondent, having been told to repair the problem of the inappropriate direction of slope in the concrete at the entry way of the home, simply tore it out but never replaced it. 9. At the hearing in this matter, Respondent steadfastly maintained that the method of installing the roofing on the addition and garage was appropriate. Not only Mr. King, but also Dan McIntyre, a contractor whose expertise in this area was firmly established, testified as to the appropriate method of installing the roofing. It is clear that Respondent’s method of installing the roofing material was far below the minimum standards required of a licensed contractor in Arizona. 10. It is clear from the testimony of the parties, as well as their respective demeanors, that Complainants and Respondent can no longer work together to resolve the problems created by Respondent’s poor workmanship.

11. It is clear to the undersigned that Respondent’s work was far below that required by administrative regulation. Respondent’s lackadaisical attitude in this case and seeming indifference to the poor workmanship is disturbing. The amount of time that has elapsed since the problems were brought to Respondent’s attention and Respondent’s minimal efforts to affect repairs are unacceptable. It is equally clear that to order Respondent to affect repairs would not protect Complainants nor would it adequately impress upon Respondent the need to complete work in a timely, professional, and workmanlike manner. Rather, it would far better serve the purposes of the Title 32 to order Respondent reimburse Complainants for the cost of hiring another Contractor to effectuate the repairs. 12. Complainants submitted a proposal from Mr. McIntyre to correct the conditions created by Respondent’s poor workmanship. The total of this amount, $35,225.00, includes $3,650.00 to repair the irrigation system which Complainants maintain was broken by Respondent. It also includes $3,000 to repair the pool. The evidence in this case does not demonstrate that Respondent should bear any responsibility for the irrigation system. Nor has there been an adequate showing that Complainants’ allegations regarding the pool should be sustained. Taking out the amount to repair the landscape and the pool, the remaining amount, $28,675.00, is reasonable in light of the amount of work that will have to be undertaken to repair Respondent’s poor workmanship. 13. The undersigned has reviewed and considered Respondent’s two year complaint history in fashioning the recommended order in this case. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (23). Failure 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.

AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainants have 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). 3. The evidence establishes that Respondent violated A.R.S. §32- 1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. Mr. King’s and Mr. McIntyre’s testimony demonstrate the fact that Respondent’s work fell below the minimal standards required by A.A.C. R4-9-108. 4. The evidence further establishes that Respondent violated A.R.S. § 32- 1154(A)(23) by both failing to comply with the corrective order issued by the Registrar and failing to do so within a reasonable period of time. During the five months between the corrective work order and the hearing, there was no attempt to remedy most of the problems. Of those problems where some effort was made to remediate, the remediation was substandard. 5. The evidence does not establish that Respondent engaged in a fraudulent or wrongful act as required by A.R.S. §32-1154(A)(7). There was no evidence that the poor workmanship was the result of a desire to cheat or defraud the Complainants. 6. The evidence does not establish that Respondent is responsible for the broken irrigation system, the alleged damage to the pool, or the missing shelves. . . . RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Registrar’s order, the Class B Licnese No.104721 Respondent shall be suspended until the Registrar receives proof that Respondent has paid or tendered to Complainants the sum of $28,675.00. It is further recommended that if Respondent pays or tenders the above stated amount to Complainants on or before the effective date of the Registrar’s final order, then the entire Citation and Complaint in Case No. 00-0520 shall be closed. Done this day, May 15, 2000.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, 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