ALJDEC

00F-A0212-ROC · Registrar of Contractors · 2000-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2000 APPEARANCES: Joseph C. Waesche, Esq., on behalf of the Complainant Thomas G. Rhoads, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. On May 4, 1999, the Complainant and Respondent entered a contract whereby the Respondent would construct a garage with a breezeway at the Complainant’s home in Prescott Valley, Arizona. 2. The contract price was $14,300.00 and the Complainant paid a $3,500.00 deposit when the contract was signed. 3. The contract provided that it would be substantially completed within three months of the issuance of the building permit. 4. The building permit was issued on June 25, 1999, but work did not begin until the latter part of August, 1999. 5. On August 26, 1999, the construction passed the footing and set back inspection by Prescott Valley Building Inspector, Mark Barnes (Barnes). A week later the stem wall was approved. 6. By September 21, 1999, Barnes inspected the garage roof (excluding the breezeway), and sheer nailing and approved it subject to some minor adjustments. 7. By the end of September 1999, the Complainant had paid another $8,880.00 to the Respondent, for a total of $12,380.00 8. On October 18, 1999, the Complainant met with the Respondent and informed him of his concern regarding the unsatisfactory progress with the garage. The Respondent gave assurances that the work would be done in a more timely manner. Progress on the job was continued to be unsatisfactory to the Complainant who noted a number of other problems. 9. The Complainant filed his complaint with the Registrar of Contractors on November 20, 1999. 10. Inspector Cliff Frandsen (Frandsen), performed an inspection. On December 3, 1999, Frandsen issued a Corrective Work Order (CWO). 11. Frandsen was not available to testify at the hearing. The CWO required the Respondent to: L. Correct unfilled joints in the stem wall; M. Ensure all framing is to code and minimum workmanship standards; N. Ensure breezeway framing is to code and properly planes into the existing roof; O. Replace damaged roof shingles on the garage and install the starter course with 3/8 “overhang; P. Complete the firewall to code. 17. The Respondent had been billed $470.00, for the garage door by Guaranteed Door Service, Inc. (Guaranteed), in mid November, 1999. Telephone calls to and messages left with the Respondent’s wife by Guaranteed did not cause the Respondent to pay. On December 14, 1999, Guaranteed executed a 20 day lien notice for $470.00 against the Complainant’s property. 18. The Complainant paid Guaranteed the $470.00. 19. On December 16, 1999, Barnes inspected and approved the rough framing and partial electrical work. 20. The Respondent patched some of the stem wall and put up part of the firewall in response to the CWO. 21. Approximately 14 days after the CWO, the Respondent’s crew left and did not return. The garage was locked and the Complainant did not have key. He called a locksmith to gain access. 22. When the Respondent came back to the job, the Complainant terminated the contract for failure of the Respondent to perform according to the contract terms. 23. On February 14, 2000, Barnes issued a letter stating that the garage could not pass final inspection because: X. The interior firewall was not finished; Y. The starter course of the shingles needed to be nailed every 12 inches; Z. The drip edge on the breezeway was not set in fascia; AA. The west gable end was not nailed off correctly and it was missing a center stud; AB. Stemwall joints were open; AC. Electrical work was not completed and was improperly wired AD. Soffit boards on breezeway need openings to allow for inspection of framing, roof blend and electrical work. 19. Photographic evidence presented at the hearing shows: A. The framing at the northeast and southeast corners of the garage, and the framing for the garage door, is out of plumb. According to Barnes he did not notice this during his inspection but the deviation of approximately an inch and a half is unacceptable. The electrical boxes are recessed behind the siding at the garage and walkway doors. Unsheathed wiring is outside of an interior electrical box. Electrical outlets and switches are not flush with the interior drywall. B. The breezeway roof has waves, humps and dips. C. The breezeway fascia does not match, the drip edge is not properly attached and the fascia is lifting. D. The breezeway soffit is out of level by an inch and a half and the breezeway ceiling is bowed or warped. E. The breezeway tie in to the garage is not flush and is not finished. F. The interior firewall is not finished; it requires tape and texture. G. Garage window framing has channels and gaps between the frame and the garage wall. H. Garage door trim is 3/4 of an inch lower at the west end. I. There are still open stem wall joints with an absence of mortar. J. The northwest and southwest exterior corners of the garage are not completed. 11. The breezeway is not cut evenly into the roof of the home. There is a one and a half inch variation in the soffit. This is apparently due to the sagging of the soffit and roof around the house but based on the evidence (the CWO and the testimony of Tim Brooks, a general contractor), the breezeway could have been properly blended into the existing roof. 12. According to Barnes some of the nail patterns for the siding materials did not follow manufacturer’s specifications. 13. The Complainant offered evidence that it would cost $12,500.00 to correct and complete the garage. This estimate is much too speculative to establish an amount that would be considered appropriate as restitution. However the $470.00 paid by the Complainant to Guaranteed, is appropriate for restitution.

Conclusions of Law The allegations in this Citation and Complaint concern A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108 relating to workmanship, (A)(7), a wrongful or fraudulent act resulting in substantial injury, and (A)(23) failure to take appropriate corrective action. 1. The evidence sustains violations of A.A.C. R4-9-108 for those things referenced in paragraphs 11 (A) through (D), 18 (B) through (E), 19 (A) through (E), and (G) through (I), and paragraphs 20 and 21. Other items referenced in those cited paragraphs were not completed and no conclusion is made as to the workmanship except for 18 (F) which although it is not complete, was not done in a workmanlike manner because the Respondent is not licensed to do electrical work and the evidence shows the Respondent did this work without an electrical subcontractor. 2. The evidence sustains wrongful conduct at least with respect to Respondent’s failure to pay Guaranteed requiring the Complainant to respond to a lien notice. Additionally, other aspects of the case such as the failure to do the work in a timely manner without apparent justification for the delay contributes to the violation of this statutory provision. 3. The failure to do corrective work is not quite as clear since it is not shown that the Respondent refused to do the corrective work but only that he was not as timely as required. Some work was done by the Respondent but the Complainant determined that since the majority of the work was not completed within the 15 days of the CWO, he would terminate the contract. The violation is established because the Respondent did not present evidence to justify his rather lackadaisical response to the CWO. 4. The Complainant is advised that if the Registrar’s Order requires corrective work and the completion of the garage, then it is incumbent on the Complainant to provide reasonable access to the Respondent, to accomplish such work. 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 license shall be revoked unless the Registrar of Contractors receives written proof that the Respondent has accomplished or caused to be accomplished by a properly licensed contractor, appropriate and effective remedial work to complete the garage as required by the Frandsen Corrective Work Order and by the Barnes letter of February 14, 2000, plus remedial work on the items specified in paragraphs 19 A-J, 20 and 21, of the Findings of Fact. It is further recommended that the respondent pay or tender payment of restitution to the Complainant, in the amount of Four Hundred Seventy and 00/100’s ($470.00) Dollars; It is Further recommended that if the Respondent accomplishes the corrective work to complete the garage and pays or tenders payment of restitution as required by the Order entered in this matter, then the aforementioned revocation shall not take place, but rather the Respondent’s Class B license shall be placed on probation for a period of One Hundred and Eighty (180) days. Done this 28th day of June, 2000

______________________________________ Allen Reed 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