ALJDEC

00F-0725-ROC · Registrar of Contractors · 2000-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2000 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president and qualifying party, Dennis Criner. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to written contract, Respondent agreed to perform specified plumbing work at Complainant’s residential structure. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. The following salient facts were adduced at the hearing and are important to note: a. Complainant is the owner of a rental property located next door to her home. Based on the fact that she was experiencing specified exterior plumbing drainage problems on the rental property, she contacted Respondent to correct the problem. b. Among other items, the contract between the parties specified that Respondent would “re-pipe the two bath house and run new copper pipe from the meter to the house under the sidewalk.” In addition, Respondent was to replace the interior galvanized pipe with new copper pipe. In order to install the new copper pipe inside the home, it was necessary for Respondent to break into certain areas of the drywall which were to be repaired after completion of the plumbing work. c. Respondent’s work on the project was completed in June 1999. Complainant paid Respondent the total sum of $2,743.84 for the work performed. d. On September 2, 1999 Complainant filed the instant complaint with the Registrar of Contractors, alleging that Respondent did not perform all of the work on the contract and that she was charged for work on a two bathroom home when, in fact, the home in question only had one bathroom. Respondent averred that the filing of the complaint with the Registrar of Contractors was the first that it heard there was a problem with the work performed on the project. 3. The evidence of record was sufficient to support a finding that the following construction related deficiencies were present in Respondent’s work at the time the instant complaint was filed with the Registrar of Contractors: a. Respondent performed the above-described plumbing work without the required permit. b. Although the applicable contract required the installation of new copper pipe from the water meter to the house, this was not accomplished. c. Respondent’s billing submitted to Complainant references work on a two bathroom house when there is only one bathroom in the home. This fact necessarily reflects an unjustified cost in the billing submitted by Respondent. d. In specified areas of the home, Respondent failed to remove the old galvanized piping. 4. The above-described items constitute substandard and unacceptable workmanship, as well as a wrongful act within the meaning of the charged section of the State’s Contracting laws. In addition, Respondent’s failure to obtain a permit for the work and to comply with the specific provisions of the contract constitutes a material and prejudicial departure from the contract specifications and the local building code, in violation of the applicable charged section of the State’s Contracting laws. 5. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on some of the items, total compliance was not accomplished. 6. Evidence of record demonstrated that immediately upon being apprised of the complaint filed with the Registrar of Contractors, Respondent returned to Complainant’s home and attempted to resolve the complaint. In this regard, Respondent ultimately obtained the required permit, installed the plumbing pipe from the meter to the house and paid Complainant $300. 7. On September 21, 1999, Respondent prepared a written document, signed by Complainant, which indicated that upon receipt of $300.00 and the installation of the new water service to the home, Complainant would dismiss the complaint filed against Respondent’s license. Respondent contends that this document is evidence of an agreement of accord and therefore, the instant matter should be dismissed. 8. Evidence of record demonstrated that although Respondent has obtained the required permit for the project, same has still not been inspected by the local building authority. In this regard, Respondent needs to contact the local building official, open up the drywall inside the home (to reveal the new plumbing installation) and pressure test the system in the presence of the building official. Once the inspection is complete, it will be incumbent upon Respondent to cause a properly licensed contractor to repair the drywall and paint the repaired area. 9. The instant record also demonstrated that there are still two specified areas in the interior of the home wherein the original galvanized plumbing pipes have not been removed. 10. Due to the fact that the plumbing project has not been passed by the city and Respondent still needs to remove portions of the original galvanized plumbing pipes, Respondent’s work on the project is not complete. It is held that the aforementioned alleged agreement of accord includes the implied condition that Respondent’s work must be complete, accomplished within all applicable building code requirements and must be capable of meeting good and proper workmanship standards. Since Respondent has not complied with all of the requirements on the September 21, 1999 document, it cannot be held that said document represents an agreement of accord and satisfaction which would otherwise serve to estop Complainant from continuing to pursue this matter before the Registrar of Contractors.

11. The fact that Respondent did not receive any notice from Complainant regarding the issues of her complaint until such time as she filed the complaint with the Registrar of Contractors is deemed to be a matter in mitigation for any determination of appropriate disciplinary sanctions to be imposed herein. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given notice of the problems and a reasonable opportunity to complete necessary remedial work. 12. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractor’s orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the Registrar of Contractors imposed a prior disciplinary sanction against Respondent’s license on a matter wherein the Registrar was proceeding against Respondent on its own motion.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2), and (3); namely Rule R 4-9-108. RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-37R license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent’s work on the plumbing project has passed the local building authority inspection, that all galvanized pipe that was required to be removed from the interior of the home is removed, and that Respondent caused a properly licensed contractor to repair and paint all holes that are created in the interior drywall for the inspection by the local building authority. It is further recommended that if Respondent 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. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-37R license be placed on a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. Done this day, February 23, 2000.

______________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________ -----------------------

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