ALJDEC

00F-2502-ROC · Registrar of Contractors · 2000-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2000. APPEARANCES: The Complainants appeared personally. The Respondent appeared through its president and qualifying party, Thomas J. Hemsher. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of License Number 145911, a Class C-30 finish carpentry license, issued by the Registrar of Contractors. 2. Complainants hired Respondent to do remodeling work at their residence. The scope of work included the production and installation of kitchen cabinets, and the installation of a wooden fence and gate. 3. Complainants filed a complaint with the Registrar of Contractors alleging that Respondent violated provisions of the State’s contracting laws on their remodeling project. 4. As a result of the filed complaint, the Registrar of Contractors’ assigned inspector performed a jobsite inspection to view Respondent’s construction. As a result of that inspection, the Registrar issued a Corrective Work Order directing the Respondent to perform, and/or cause to be performed, remedial work to its deficient workmanship. The Corrective Work Order required that the following remedial work be performed: e) Complete the kitchen cabinets in a workmanlike manner and per industry standards. The Inspector required that Respondent correct the upper cabinets, which measured 21” and were too deep in his opinion. The inspector opined that the upper cabinets were too wide to function as intended and were unsightly. Workmanship issues included “exposed plywood edges of pantry, splices in stain grade molding, a 2” toe-kick on the pantry, exposed ends at stove and gap at dishwasher”. The written directive required Respondent to correct the deficient conditions by appropriate means. f) The perimeter fence was not constructed to industry standards. The Inspector noted that the “(p)ost spacing varies, rails nailed on sides to posts instead of between, unsightly splices between panels, fence…crooked”. Respondent, who is not licensed to perform such work, was required to cause a properly licensed contractor to remove and reinstall the fence in a workmanlike manner.

7. Respondent’s installation of the wooden fence and gate was outside the scope of its Class C-30 license. It is determined that Respondent knowingly contracted outside the scope of its finish carpentry license. In addition to contracting beyond the scope of its license, Respondent’s installation of the wooden fence and gate does not meet minimum workmanship standards. Respondent has not complied with the Registrar’s written directive as to these items. Respondent is responsible for causing, at its sole cost and expense, a properly licensed contractor to remove and reinstall the wooden fence and gate as required by the Registrar. 8. Complainants are found to have agreed to the construction and installation of kitchen cabinets that are 39” high rather than the 36” height, which is the industry standard. 9. The evidence of record supports the finding that Respondent’s construction and installation of the kitchen cabinets in Complainants’ residence do not meet minimum workmanship standards. It is noteworthy that the Inspector’s notes created after viewing Respondent’s workmanship state “I have never seen anything like this before…This is the most unprofessional finish work I’ve ever seen…I don’t think this Contractor is capable of cabinetry work that is within industry standards…All in all, this is the worst workmanship I’ve seen”. 10. After the Complainants filed their complaint against Respondent with the Registrar, Respondent failed to return to complete its scope of work. 11. Respondent failed to comply with the Registrar’s written directive to cause its out of scope work to be removed and replaced by a properly licensed contractor and to perform remedial repairs to its deficient cabinetry workmanship. 12. Respondent had no good cause for its failure to comply with the Registrar’s Corrective Work Order. 13. Respondent is found to have failed to perform its contractually obligated work for the original contract price. Respondent presented unsigned change orders with pricing to the Complainants at the jobsite inspection. Complainants contest those change orders. Complainants are found not to have agreed to those unsigned change orders. 14. Respondent’s out of scope work, deficient workmanship and failure to comply with the Registrar’s Corrective Work Order are deemed wrongful acts which have substantially injured the Complainants.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(1), (7), (9), (17), (23) and (3); namely Rule R4-9-108. 2. A.R.S. § 32-1154(D) provides that the Registrar “may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation” of A.R.S. § 32-1154(A). The evidence of record supports the imposition of a civil penalty against Respondent in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that Respondent’s Class C-30 license be suspended until the Registrar of Contractors receives written proof that the items set forth in the written directive from the Registrar’s inspector, the terms of which are incorporated herein by reference, have been appropriately rectified by Respondent. It is further recommended that if Respondent properly complies with the Registrar’s Corrective Work Order on or before the effective date of the entered Order in this matter, then the above-provided license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-30 license shall be placed on suspension for a period of five days, followed immediately by a period of days probation. This additional disciplinary penalty shall commence on the effective date of the entered Order in this case or the date on which notice of Respondent’s compliance with the terms of the entered Order is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $300.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of that civil penalty on or before 30 days following the effective date of the entered Order in this matter shall result in the automatic revocation of Respondent’s contractors license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5) unless payment of any outstanding prior civil penalty is tendered. It is further recommended, in addition to the above-provided penalties, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 24 month period and only if no claims are then pending.

Done this day, October 20, 2000

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater, Director 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