ALJDEC

00F-2066-ROC · Registrar of Contractors · 2000-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2000 APPEARANCES: Kathy Kirsch, Complainant, in her own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant wanted to extend the master bedroom of her home in Phoenix, Arizona. The extension was to be 10 by 20 feet, with French doors and windows at the south end and a walk in closet inside. 2. The Complainant solicited bids for the construction of the addition. The Respondent submitted one of three bids that were considered. 3. The Respondent’s proposal, dated July 16, 1999, was for $15,750.00 and the project was to take no more than six weeks. The contract required that the work was to be done in a “…good and substantial workmanlike manner.” 4. Work began in August, 1999. Initially crews installed the footing and poured slabs. However, after a while, work slowed down with less progress being made. The time came when the Respondent might have someone work for a day and then not do any work for a week. 5. The Complainant filed her complaint with the Registrar of Contractors (Registrar), on February 25, 2000. 6. At the time the complaint was filed, the bedroom addition was at the framing stage. 7. No inspection was done by the Registrar’s Office because the complaint was treated as abandonment by the Respondent. 8. After the complaint was filed, the Respondent sent someone to clean up refuse, install lath, and “dry in” the roof although the roof tile is still missing, no drywall has been installed and no stucco has been applied. No further work has been done by the Respondent. 9. The Complainant had another contractor inspect the work done by the Respondent to determine if it met workmanship standards. 10. Based on that inspection and the ensuing report, numerous items were found to be deficient. Some of these items included: K) Exterior sill plates were not pressure treated or treated for termites; L) The concrete slab is not the correct height; M) The concrete porch finish does not match other poured finishes; N) A crack in the concrete due to no expansion joint; O) Exterior framing was not set back far enough to allow for stucco blending; P) The stucco lap wire is not lapped properly; Q) The window as installed protrudes too far past the wall; R) Drip edge does not match existing drip edge; S) Plywood decking on patio is bowing; T) Fascia trim on patio is pieced together other fascia is not mitered at joints; U) Improper installation of the patio joist and improperly sized roof joists; V) Rolled roofing is not correct material and not properly secured; W) French door encasement is not according to plan and the metal supports for the encasement are not properly bolted; X) Poor framing; Y) Insufficient electrical circuits; Z) Ductwork is unlined flexduct and should be lined; AA) Wood used above the window is warped 28. The above is not a complete listing of all the items found deficient. The exhibit submitted by the Complainants and admitted into evidence includes photographs of those items which are listed in the report as deficient in some way. 29. The Complainants have paid a total of $12,855.00 to the Respondent. Conclusions of Law The allegation in the Citation and Complaint concerns A.R.S.§32- 1154(A)(7), a wrongful or fraudulent act resulting in substantial injury to another. It appears that an allegation of abandonment may have been discussed with the Complainants and someone at the Registrar’s Office but the Citation and Complaint did not specifically charge a violation of A.R.S.§32-1154(A)(1). 1. A week prior to the hearing the Complainant’s submitted a motion to amend the complaint to include the items set forth in the above referenced inspection report. Administrative Law Judge, (ALJ) Bryant denied the motion for being untimely and other reasons stated in the denial. Subsequently this case was received by ALJ Reed. 2. The Respondent was not present at the hearing. No good cause was known for the Respondent’s failure to appear. 3. The Complainant’s evidence was not rebutted. 4. The inspection report and photographs were received during the instant hearing to give a more complete picture of the case and not to establish new allegations or new violations. 5. The alleged violation is proven by a preponderance of the evidence. The acts and omissions of the Respondent, constitute wrongful acts under the statute. The project has not been completed and much of the project is improperly constructed, it is now eight months past the completion date, the Respondent has abandoned, and thereby breached the contract after the Complainants paid approximately 80% of the contract price. Although a specific allegation of abandonment could have been brought it is unnecessary because the wrongful act provision is sufficiently broad to include the Respondent’s conduct in this case.

Recommended Order In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter, that the Respondent’s Class B-03 license shall be revoked unless the Registrar of Contractors receives written proof that the Respondent has corrected and completed the enlargement of the bedroom in a “good substantial workmanlike manner” according to the terms of the contract between the parties, and in compliance with applicable codes; It is further recommended that if the Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned revocation shall not take place but rather the Respondent’s Class B-03 license shall be placed on probation for a period of One Hundred and Eighty (180) days. Done this ___ day of July, 2000.

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ___ day of July, 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